Can a part-time assistant district attorney also defend criminal cases in private practice, and what happens to the lawyer's firm?

Plain-English summary

Opinion EF-11-02, revised March 29, 2021, addresses the conflicts that arise when one lawyer works part-time as an assistant district attorney (ADA) prosecuting on behalf of the State of Wisconsin and part-time in a private law firm that might defend criminal cases. The committee notes that in Wisconsin a district attorney's office is a "firm" for conflict purposes under SCR 20:1.0(d).

To analyze the conflict, the committee first identifies the prosecutor's client. It concludes that a district attorney involved in criminal prosecutions represents the State of Wisconsin, not the county: prosecutions are brought in the State's name, state statutes define the office's authority, and district attorney offices and agencies cooperate across counties. The revised opinion withdraws earlier opinions that implied prosecutors represented individual counties. Because the State is a current client, SCR 20:1.7(a)(1) bars the part-time prosecutor from representing criminal defendants anywhere in the state. The bar does not automatically extend to unrelated non-criminal matters against the State; the opinion calls for a fact-specific analysis where the office's work touches agencies with both civil and criminal jurisdiction.

The committee does not decide whether a district attorney has authority to consent for the State. It says that, if such authority exists, both the State and affected defendant would have to give informed consent under SCR 20:1.7(b), but suggests viewing the conflict as unwaivable because that consent is difficult to envision. The committee concludes the conflict is imputed to the lawyer's private firm under SCR 20:1.10, disqualifying it from state criminal defense. Under SCR 20:1.11(f), the individual lawyer's conflict is not imputed to the district attorney's office if the lawyer is timely screened from the affected matter.

In practice

Under the revised opinion, a Wisconsin lawyer serving part-time as an assistant district attorney cannot also represent state criminal defendants, and the lawyer's private firm is likewise disqualified from state criminal defense. The committee suggests treating consent to this conflict as unavailable; unrelated non-criminal matters require a fact-specific analysis. The district attorney's office is not disqualified if the lawyer is timely screened.

Common questions

Q: Who is a Wisconsin prosecutor's client for conflict purposes?

A: The State. The committee concludes that the State of Wisconsin, not the county, is the district attorney's client in criminal cases, based on the scope of the office's authority, prosecution in the State's name, and cooperation across counties.

Q: Can a part-time ADA defend criminal cases in private practice?

A: No. The committee concludes that because the State is a current client, SCR 20:1.7(a)(1) bars the lawyer from representing criminal defendants anywhere in the state.

Q: Is the part-time ADA's firm also disqualified?

A: Yes, for state criminal defense. The committee concludes the conflict is imputed to the private firm under SCR 20:1.10 and suggests treating consent to the conflict as unavailable.

Q: Is the whole district attorney's office disqualified by the lawyer's private-side conflict?

A: No, with screening. The committee concludes that under SCR 20:1.11(f) the lawyer's conflict is not imputed to the office if the lawyer is timely screened from the matter.

Background and rules framework

The revised opinion interprets SCR 20:1.7 (concurrent conflicts, including the 20:1.7(b) consent requirements), SCR 20:1.9 (former clients), SCR 20:1.10 (imputation in a private firm), and SCR 20:1.11(f) (screening of a current government lawyer's conflicts), along with the definition of "firm" in SCR 20:1.0(d). It applies Wis. Stat. § 978.05 and treats the State as the prosecutor's client in criminal cases, citing In re Penn.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.7(a)(1), (a)(2), (b) (concurrent conflicts)
• Wis. SCR 20:1.9 (former clients)
• Wis. SCR 20:1.10 (imputation in a firm)
• Wis. SCR 20:1.11(f) (screening current government lawyers)
• Wis. SCR 20:1.0(d) (definition of "firm")

Statutes:

• Wis. Stat. § 978.05 (powers and duties of the district attorney)

Cases:

• In re Penn, 201 Wis. 2d 405, 548 N.W.2d 526 (1996), the State is the district attorney's client
• Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276 (S.D.N.Y. 2001), narrow definition of a government lawyer's client

Other opinions cited:

• ABA Formal Opinion 142 (1935) and ABA Ethics Opinion 30 (1931): prosecutors and criminal defense

See also

• WI Ethics Op. EF-22-01: Migration in Criminal Practice
• DC Ethics Op. 268: Conflicts Where Private Lawyers Volunteer for Corporation Counsel
• DC Ethics Op. 240: Corporation Counsel Conflicts in Title IV-D Child Support Cases

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Revised official PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-11-02%20REVISED%20FINAL.pdf
• Original 2011 PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-11-02.pdf