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WISBAR July 5, 2011

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

Short answer: The opinion concludes that because a Wisconsin prosecutor's client is the State, a part-time assistant district attorney has a non-waivable conflict barring the lawyer from representing criminal defendants anywhere in the state (though not from unrelated non-criminal matters against the State). That conflict is imputed to the lawyer's private firm, disqualifying it from state criminal defense, but is not imputed to the district attorney's office if the lawyer is timely screened. It withdrew the implication of earlier opinions that prosecutors represent counties.

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This page answers the general question as of 2011. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2011
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Plain-English summary

Opinion EF-11-02 (July 5, 2011) 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. Treating the question as a fact-based inquiry but applying it to Wisconsin's structure, the committee concludes the client is the State of Wisconsin, not the county: district attorneys are now state employees, prosecutions are brought in the State's name, their authority is defined by state statute (Wis. Stat. 978.05), offices cooperate statewide, and the Attorney General takes over prosecutions an office cannot pursue. This corrects the implication of earlier Wisconsin opinions (E-81-5, E-83-19, E-86-15) that offices act for 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, since defending a criminal case is directly adverse to the State. The bar does not automatically extend to unrelated non-criminal matters against the State; because the prosecutor's representation is statutorily limited, the lawyer is not the State's lawyer in all matters, though a fact-specific analysis under SCR 20:1.7 and 20:1.9 is needed where the office's work touches agencies with both civil and criminal jurisdiction.

The committee finds the conflict non-waivable: SCR 20:1.7(b) would require each affected client's informed consent in writing, but no official can readily give informed consent for the State to adverse criminal defense, and a criminal defendant is unlikely to authorize the disclosures needed to obtain the State's consent. On imputation, the committee concludes the private firm is disqualified from defending state criminal cases under SCR 20:1.10, because the conflict arises from an adverse current client (not a personal interest, and not a former-client matter), so neither 1.10(a) exception applies and 1.10(c) waiver is unavailable. By contrast, under SCR 20:1.11(f), the individual lawyer's conflict is not imputed to the entire district attorney's office, provided the lawyer is timely screened from any matter to which the conflict applies, so the office may continue prosecuting.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer serving part-time as an assistant district attorney could not also represent criminal defendants against the State, and the lawyer's private firm was likewise disqualified from state criminal defense. The committee concludes that this conflict cannot be cured by consent, that the lawyer may still take unrelated non-criminal matters against the State subject to a fact-specific check, and that 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, based on the office's state-employee status, statutory authority, and statewide cooperation.

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 criminal defense. The committee concludes the conflict is imputed to the private firm under SCR 20:1.10, disqualifying it from defending state criminal cases statewide, and it cannot be waived.

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 opinion interprets SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts, including the 20:1.7(b) waiver requirements), SCR 20:1.9 / Model Rule 1.9 (former clients), SCR 20:1.10 / Model Rule 1.10 (imputation in a private firm), and SCR 20:1.11(f) / Model Rule 1.11 (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 (district attorney authority) and treats the State as the prosecutor's client, citing In re Penn.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.7(a)(1), (a)(2), (b) / Model Rule 1.7 (concurrent conflicts)
  • Wis. SCR 20:1.9 / Model Rule 1.9 (former clients)
  • Wis. SCR 20:1.10 / Model Rule 1.10 (imputation in a firm)
  • Wis. SCR 20:1.11(f) / Model Rule 1.11 (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 (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 Op. 97-405: government lawyers and identifying the client
  • ABA Formal Op. 142 (1935); ABA Op. 30 (1931): part-time prosecutor may not defend criminal cases

See also

Source

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