Does a criminal defendant's threat to sue the prosecutor create a conflict that bars the prosecutor from continuing the case?

Plain-English summary

The committee was of the opinion that when a prosecuting attorney had been threatened with a lawsuit by a criminal defendant, the prosecutor would be presented with no conflict such as to prevent the prosecutor from continuing to prosecute the defendant.

The opinion is a single sentence and does not elaborate on the reasoning; on the facts of a bare threat, the committee found no disqualifying conflict.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The conflict rule then numbered RPC 1.7(b) corresponds to Model Rule 1.7 and was rewritten in the current rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: If a defendant threatens to sue the prosecutor, must the prosecutor step aside?

A: Per the opinion, no. The committee was of the opinion that the threat presented no conflict such as to prevent the prosecutor from continuing the prosecution.

Q: Did the committee treat the threat as creating any conflict at all?

A: No. On the facts of a threatened lawsuit, the committee found no conflict that would bar continued prosecution.

Background and rules framework

The opinion applies the conflict rule then numbered Washington RPC 1.7(b), corresponding to Model Rule 1.7, which addresses representation that may be materially limited by the lawyer's own interests. The committee concluded that a defendant's threat to sue the prosecutor did not materially limit the prosecutor's ability to continue the case, so no disqualifying conflict arose.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.7(b) (conflict of interest; representation limited by the lawyer's own interests), corresponding to Model Rule 1.7.

See also

• WSBA Ethics Op. 916: a prosecutor's office representing two parents seeking support from the same parent
• WSBA Ethics Op. 934: a county prosecutor bringing a paternity or child-support case while a parent's interests are at stake
• WSBA Ethics Op. 1020: what a prosecutor may tell witnesses about defense interviews

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=204

Original opinion text

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

Advisory Opinion: 1124
Year Issued: 1987
RPC(s): RPC 1.7(b)
Subject: Conflict of interest; threat by defendant to sue prosecutor

The Committee was of the opinion that when you as a prosecuting attorney had been threatened with a lawsuit by a criminal defendant, you would be presented with no conflict such as to prevent you from continuing to prosecute the defendant.