What conflicts arise when a Wisconsin criminal defense lawyer moves to a prosecutor's office, or a prosecutor moves to a defense firm?
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Plain-English summary
Opinion EF-22-01 (March 16, 2022) addresses the conflicts that arise when a lawyer moves between criminal defense and prosecution, and withdraws prior opinions E-80-12, E-86-18, E-86-15, and E-86-8. On the defense-to-prosecution side, the committee concludes that once a defense lawyer agrees to an interview with a prosecutor's office, the lawyer has a personal-interest conflict under SCR 20:1.7(a)(2) in continuing to represent criminal defense clients, because the lawyer's interest in a good relationship with the prospective employer can temper the vigor of the defense. The committee treats the district attorney's office as a single statewide office, so the conflict reaches every criminal defense client regardless of county, and continued representation requires the lawyer's reasonable belief that representation will not be impaired plus each client's informed consent in a signed writing. Running for district attorney triggers the same conflict when candidacy is announced.
On the prosecution-to-defense side, the committee notes a sharper rule: SCR 20:1.11(d)(2)(ii) flatly bars a prosecutor from negotiating for employment with a firm involved in a case the prosecutor is handling, with no automatic conflict where the firm has none of the prosecutor's cases. The committee then maps the post-switch restrictions. A former defense lawyer turned prosecutor may not appear adversely in the same or substantially related matters of former clients, or in matters where the lawyer obtained protected information about a firm client, under SCR 20:1.9; those conflicts are not imputed to the rest of the office under SCR 20:1.11(f), and timely screening lets other prosecutors proceed. A former prosecutor turned defense lawyer may not handle a matter in which the lawyer participated personally and substantially as a public officer (regardless of adversity) absent the government's written consent, and may not act adversely to a person about whom the lawyer holds confidential government information; the firm may proceed only if the lawyer is screened and takes no fee.
The committee closes with practical guidance on screening, drawing on SCR 20:1.0(n): a written system, training of all firm personnel, timely implementation, isolation of the conflicted lawyer, and protection of confidential information. It directs the migrating lawyer to compile a list of affected former clients so accurate screens can be built, and notes that screening may be difficult or impossible in very small offices, on which it takes no position.
In practice
Under this opinion, conduct matching its fact pattern is treated as follows. A defense lawyer who agrees to a prosecutor interview or announces a DA candidacy must disclose that to every criminal defense client under SCR 20:1.4(b) and may continue only with each client's signed informed consent under SCR 20:1.7(b); otherwise the lawyer must withdraw. A prosecutor may not negotiate employment with a firm handling the prosecutor's cases. After a switch, the committee concludes the lawyer is personally barred from former-client and personally-handled matters, but timely screening that follows SCR 20:1.11 lets the new office or firm continue, with notice to the former government employer where required.
Common questions
Q: Does a defense lawyer have a conflict just from interviewing to be a prosecutor?
A: Yes. The committee concludes that agreeing to an interview with a prosecutor's office creates a personal-interest conflict under SCR 20:1.7(a)(2) in all of the lawyer's criminal defense cases.
Q: Can the lawyer keep representing clients after that?
A: Only with consent. The committee concludes the lawyer must reasonably believe representation will not be impaired and obtain each client's informed consent in a signed writing, or withdraw.
Q: Can a prosecutor look for a defense job?
A: Not with a firm involved in the prosecutor's cases. The committee notes SCR 20:1.11(d)(2)(ii) flatly bars negotiating for employment with a firm involved in a matter the prosecutor is handling.
Q: After switching from defense to prosecution, which cases are off-limits?
A: Former clients' matters. The committee concludes the new prosecutor may not appear in the same or substantially related matters of former clients or matters where the lawyer obtained protected information, though the conflict is not imputed and timely screening lets others proceed.
Q: After switching from prosecution to defense, what is restricted?
A: Personally-handled matters and confidential-information matters. The committee concludes the former prosecutor may not handle a matter they participated in personally and substantially without the government's written consent, and the firm may proceed only with screening and no shared fee.
Background and rules framework
The opinion interprets SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts, including personal-interest conflicts), SCR 20:1.9 / Model Rule 1.9 (duties to former clients), SCR 20:1.10 / Model Rule 1.10 (imputation), and SCR 20:1.11 / Model Rule 1.11 (successive government and private employment, including the Wisconsin-specific screening rule in 20:1.11(f) for current government lawyers). It also applies SCR 20:1.4 (communication), SCR 20:1.16 (withdrawal), and SCR 20:4.2 (contact with a represented person), and treats both prosecutor and public-defender offices as "firms" under SCR 20:1.0(d).
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.7 / Model Rule 1.7 (concurrent and personal-interest conflicts)
- Wis. SCR 20:1.9 / Model Rule 1.9 (duties to former clients)
- Wis. SCR 20:1.11 / Model Rule 1.11 (successive government and private employment; screening)
- Wis. SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts)
- Wis. SCR 20:1.16, 20:1.4, 20:4.2 / Model Rules 1.16, 1.4, 4.2
Statutes:
- Wis. Stat. § 978.06(5)(a) (full-time prosecutor may not maintain a separate practice)
Cases:
- State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, no substantial relationship found for disqualification
Other opinions cited:
- Wisconsin Formal Ethics Op. EF-19-01: conflicts arising from a job search
- Wisconsin Formal Ethics Op. EF-11-02: concurrent part-time assistant DA and private practice
See also
- ABA Formal Op. 97-409: Successive Government and Private Employment
- ABA Formal Op. 509: Disqualification to Prevent Misuse of Confidential Government Information
- Alabama Ethics Op. 1990-05: Imputed Disqualification of District Attorneys
- WI Ethics Op. EF-25-02: Lawyer Mobility, Duties of the Departing Lawyer and the Firm
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-22-01%20Migration%20-%20FINAL.pdf
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