Must a prosecutor who is sued by a criminal defendant step aside and ask for a special prosecutor to avoid a vindictiveness claim on appeal?

Plain-English summary

Opinion E-86-17 addressed a district attorney prosecuting a defendant on several misdemeanor offenses. After several hearings, but before trial, the defendant brought a federal lawsuit against the prosecutor related to the misdemeanor proceedings. The question was whether the prosecutor must seek or recommend appointment of a special prosecutor to eliminate a possible appeal of sentence based on allegations of prosecutorial vindictiveness if the defendant were convicted.

The committee answered no. First, it was prepared to assume that the prosecutor, forewarned of the possibility of such an appeal, would exercise due care in preparing to sustain the legitimacy of any sentencing recommendation, citing federal vindictiveness cases including United States v. Goodwin. Second, the committee was concerned that withdrawal or disqualification at that stage of the proceeding would be premature and unwarranted, resting as it would on speculation about future prosecutorial actions. It cited the former Code's provision permitting withdrawal only for specific reasons (SCR 20.35(1)(b)), along with authority on the abuse of disqualification motions and on prosecutorial discretion.

Currency note

This opinion was issued in 1986, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The conflict and withdrawal provisions are now found in SCR 20:1.7 and SCR 20:1.16 / Model Rules 1.7 and 1.16. 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 Treat this page as historical context, not current guidance.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: If a defendant sues the prosecutor mid-case, must the prosecutor recuse?

A: The committee concluded no; a prosecutor sued by a defendant is not required to seek or recommend a special prosecutor to avoid a possible vindictiveness appeal.

Q: Why not step aside to be safe?

A: Per the opinion, withdrawal or disqualification at that stage would be premature and unwarranted because it would rest on speculation about future prosecutorial actions, and the committee assumed the prosecutor would use due care to sustain any sentencing recommendation.

Q: What rule governed the withdrawal question?

A: The committee cited SCR 20.35(1)(b), permitting withdrawal only for specific reasons, together with authority cautioning against abuse of disqualification motions.

Background and rules framework

The opinion interpreted the former Code's withdrawal provision (SCR 20.35(1)(b) / Model Rule 1.16) and the personal-interest conflict concern now addressed by SCR 20:1.7 / Model Rule 1.7, applied to a prosecutor who is a defendant in a civil suit brought by the person being prosecuted.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.35(1)(b) / Model Rule 1.16 (withdrawal for specific reasons)
• Model Rule 1.7 (personal-interest conflict)

Cases:

• United States v. Goodwin, 457 U.S. 368 (1982)
• United States v. Andrews, 633 F.2d 449 (6th Cir. 1980)
• Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir. 1982)
• Thompson v. State, 61 Wis. 2d 325, 212 N.W.2d 109 (1973)

See also

• WI Ethics Op. E-87-1: City Attorney as Both Advocate and Advisor
• WI Ethics Op. E-87-12: Guardian ad Litem Later Serving as Prosecutor
• WI Ethics Op. E-87-8: District Attorney Contact With Represented Parties

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-17.pdf