Can a prosecuting attorney privately represent a defendant in a civil case arising out of the same accident the prosecutor charged the other party over?

Plain-English summary

A prosecuting attorney asked the committee whether he could accept private employment to represent a railroad company in defending a civil suit for damages. The suit had been brought against the railroad by a freight truck driver whom the prosecutor, in his official capacity, had prosecuted for negligent driving in connection with the same accident out of which the civil action arose.

The committee concluded that the prosecutor was precluded from accepting that civil employment by virtue of the statute then codified at Section 4138 of Remington's Revised Statutes of the State of Washington, which the opinion cross-referenced to RCW 36.26.050. It relied on the Washington Supreme Court's construction of that statute in Callahan v. Jones, 200 Wash. 241, quoting the Court that the legislative intent was to entirely separate the official duties of prosecuting attorneys from any private gain, and that the statute should be construed to accomplish that purpose in full.

Currency note

This opinion was issued in 1950, decades before Washington adopted its current Rules of Professional Conduct. It interpreted a statute (cited in the opinion as Section 4138 of Remington's Revised Statutes, cross-referenced to RCW 36.26.050) rather than a rule of professional conduct. Subsequent statutory recodification, rule changes, or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current law and the current rules before relying on anything stated here.

Common questions

Q: Why couldn't the prosecutor take the railroad's civil case?

A: The committee said a statute then in force, cited as Section 4138 of Remington's Revised Statutes (cross-referenced to RCW 36.26.050), was construed by the Washington Supreme Court to separate a prosecutor's official duties entirely from private gain, which precluded the employment.

Q: What was the connection between the criminal case and the civil case?

A: They arose from the same accident. The prosecutor had charged the truck driver with negligent driving, and the same driver then sued the railroad for civil damages over that accident; the opinion treated the official prosecution and the proposed private defense as arising from one event.

Q: What authority did the committee rely on?

A: The statute then codified at Section 4138 of Remington's Revised Statutes and the Washington Supreme Court's construction of it in Callahan v. Jones, 200 Wash. 241.

Citations and references

Statutes:

• Section 4138, Remington's Revised Statutes of the State of Washington (cross-referenced in the opinion to RCW 36.26.050) (separating a prosecuting attorney's official duties from private gain)

Cases:

• Callahan v. Jones, 200 Wash. 241 (Wash.), construing the statute to separate prosecutorial duties from private gain

See also

• AL Ethics Op. 1982-648: City Prosecutor's Side Cases
• AL Ethics Op. 1992-18: Ex-Prosecutor as Defense Counsel
• AL Ethics Op. 1993-09: Part-Time ADA and Victim's Estate

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1345

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1
Year Issued: 1950
RPC(s): RCW 36.26.050
Subject: Prosecuting Attorney

Your communication requesting an opinion as to the propriety of your accepting employment to represent a railroad company in defending a civil suit for damages brought against such railroad company by a freight truck driver, whom you, as prosecuting attorney, prosecuted for negligent driving in connection with the same accident out of which his alleged civil action against the railroad company arises, has been referred to the Committee on Legal Ethics of the Association.

The Committee is of the opinion that you are precluded from accepting employment in such civil cause of action by virtue of Section 4138 of Remington's Revised Statutes of the State of Washington [RCW 36.26.050, and the construction placed by the Supreme Court on Section 4138 in the case of Callahan v. Jones, 200 Wash. 241. On page 249 of such reported case, the Supreme Court in regard to such statute states:

"The legislative intent to entirely separate the official duties of prosecuting attorneys from any private gain clearly appears, and this legislative policy is so clearly in the public interest that the statute should not be restricted by judicial interpretation, but should be so construed as to accomplish to the full its beneficent purpose."