Does a prosecutor have a conflict of interest when investigating a police officer the prosecutor works with?

Plain-English summary

A prosecutor for a Tribe asked about potential conflicts of interest in conducting a criminal investigation of a high-ranking Tribe police officer. The committee was of the opinion that, because the employment relationship between a police officer and a prosecutor does not on its own create an attorney-client relationship, there is no inherent conflict of interest under RPC 1.7(a) in a prosecutor investigating a police officer. It added, however, that there is a potential conflict of interest under the third-person clause in RPC 1.7(b) and under RPC 3.8.

The committee explained that constitutional due process obligations, RPC 3.8(d), and CrR 4.7(a) require a prosecutor to timely disclose all information that may exculpate a defendant, including damaging information learned about a police officer during an investigation; that duty would interfere with the prosecutor's ability to conduct an effective investigation, and even if the officer were never charged, information obtained might be discoverable by future defendants, putting the officer's integrity continually in question. The committee also said that, due to the close working relationship between the officer and the prosecutor, appearance-of-fairness questions are likely under RPC 8.4(d) and 3.8(d), given the prosecutor's quasi-judicial function and the public trust in the position, and that these considerations coupled with the conflict issues might weigh heavily in favor of assigning a special district counsel to investigate the officer.

Currency note

This opinion was issued in 1995, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. RPC 1.7, 3.8, and 8.4 correspond to ABA Model Rules 1.7 (conflicts), 3.8 (special responsibilities of a prosecutor), and 8.4 (misconduct).

Common questions

Q: Is a prosecutor automatically conflicted out of investigating a police officer?

A: No. The committee said the employment relationship alone does not create an attorney-client relationship, so there is no inherent conflict under RPC 1.7(a).

Q: Where does the committee see a problem?

A: The committee identified a potential conflict under the third-person clause of RPC 1.7(b) and under RPC 3.8, plus appearance-of-fairness concerns under RPC 8.4(d) and 3.8(d).

Q: What did the committee suggest the conflict points toward?

A: The committee said the conflict and appearance-of-fairness considerations might weigh heavily in favor of assigning a special district counsel to investigate the officer.

Background and rules framework

The opinion applied RPC 1.7 (conflicts of interest), RPC 3.8 (special responsibilities of a prosecutor, including the 3.8(d) disclosure duty), and RPC 8.4(d) (conduct prejudicial to the administration of justice), each corresponding to the same-numbered ABA Model Rule. The committee read the prosecutor's exculpatory-disclosure duty and quasi-judicial role together as creating both a potential conflict and an appearance-of-fairness problem.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7
• ABA Model Rule 3.8 (special responsibilities of a prosecutor); Washington RPC 3.8(d)
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(d)

Court rules:

• CrR 4.7(a) (Washington criminal rule on prosecutorial disclosure)

See also

• WA Ethics Op. 1020: Prosecutor Advice to Witnesses and Defense Interview Access
• WA Ethics Op. 1050: Successive Government and Private Employment

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=702

Original opinion text

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

Advisory Opinion: 1619
Year Issued: 1995
RPC(s): RPC 1.7; 3.8(d); 8.4(d)
Subject: Conflict of interest; prosecuting attorney investigating police officer

The Committee discussed your inquiry regarding the potential conflicts of interest if a prosecutor for [a] Tribe conducts a criminal investigation of a high-ranking Tribe police officer. The Committee was of the opinion that because the employment relationship between a police officer and a prosecutor on its own does not create an attorney-client relationship, there is no inherent conflict of interest under RPC 1.7(a) in a prosecutor investigating a police officer. However, the Committee was of the opinion that there is a potential conflict of interest under the third person clause in RPC 1.7(b), and under RPC 3.8.

Constitutional obligations under the due process clause as well as RPC 3.8(d) and CrR 4.7(a) require a prosecutor to timely disclose all information that may exculpate a defendant. This includes any damaging or potentially damaging information learned about a police officer during an investigation that a defendant could use toward a defense. This duty to disclose information would interfere with the prosecutor's ability to perform an effective investigation. Even if the police officer were never found chargeable, any information that the prosecutor obtained as a result of the investigation might be discoverable by future defendants. This would put the police officer's integrity continually in question, and place the prosecutor in an untenable position.

In addition, due to the close working relationship that necessarily exists between the police officer and prosecutor, appearance of fairness questions are likely to be raised under RPC 8.4(d) and 3.8(d), given the prosecutor's quasi-judicial function and the public trust which rests in the position. These appearance of fairness considerations coupled with the conflict of interest issues might weigh heavily in favor of assigning a special district counsel to investigate the police officer.