Can the law partners of a part-time assistant district attorney defend private criminal clients if there is full disclosure and consent?

Plain-English summary

Opinion E-76-11 considered a member of a criminal-law firm who had been appointed an assistant district attorney to administer the Federal Child Support Program in the county, with duties including determining paternity and collecting support obligations, civil and criminal. The question was whether any other member of the firm could accept the defense of private criminal clients, even with full disclosure and consent. The committee answered no.

First, the committee said that under Wis. Stat. § 59.49, the assistant district attorney himself could do no criminal defense work given his district attorney status, and that it would not matter if his duties were limited to the Federal Child Support Program; there would be a conflict of interest, or the appearance of one, contrary to DR 5-105 and DR 9-101. Turning to the partners, it noted that ABA opinions have held it improper for an assistant district attorney or his partner to defend a private client in a criminal case. The committee acknowledged "hard cases" and refinements: a partner of a part-time corporation counsel whose duties specifically excluded criminal matters could handle a criminal defense, and a city attorney or his partner could represent an indigent defendant in courts other than where he prosecuted, provided the city attorney was not involved in investigating the charges, a refinement the committee noted might make effective representation impossible.

The committee concluded that the public impression of a firm representing a criminal defendant while having a partner in the district attorney's office would create the appearance of a conflict of interest, contrary to DR 9-101 and not in the interest of a proper public impression. In summary, it would be ethically improper for a partner or associate of a part-time assistant district attorney appointed to administer the Federal Child Support Program to represent private clients in criminal defense.

Currency note

This opinion was issued in 1976, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's DR 5-105 and DR 9-101 together with Wis. Stat. § 59.49. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest) and SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts within a firm). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time assistant district attorney defend criminal cases on the side?

A: No. The committee said that under Wis. Stat. § 59.49 and the conflict rules, an assistant district attorney can do no criminal defense work, even if his prosecutorial duties are limited.

Q: Can the assistant DA's law partners take criminal defense cases instead?

A: No. The committee concluded the disqualification extends to the partners and associates, because the firm's defense of criminal clients while a partner is in the DA's office creates the appearance of a conflict.

Q: Does full disclosure and client consent cure it?

A: No. The committee answered the question of disclosure and consent in the negative; it treated the appearance of a conflict to the public as controlling.

Background and rules framework

The opinion applied the former Code's conflict rule (DR 5-105) and appearance-of-impropriety rule (DR 9-101), together with the Wisconsin statute governing district attorneys (§ 59.49), to a part-time prosecutor's firm. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts) and SCR 20:1.10 / Model Rule 1.10 (imputation).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code DR 5-105, DR 9-101
• Model Rule 1.10 / SCR 20:1.10 (imputation of conflicts)

Statutes:

• Wis. Stat. § 59.49 (district attorneys; restrictions)

See also

• WI Ethics Op. E-82-13: Court Commissioner and Partners' Criminal Defense Work
• WI Ethics Op. E-90-5: City Attorney as Defense Counsel
• WI Ethics Op. E-85-2: Criminal Defense When a Spouse Is County Sheriff

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-76-11.pdf