Can a lawyer alternate between working for a prosecutor's office and a criminal defense firm?

Plain-English summary

The inquiry asked whether the Rules permit a lawyer to alternate between working for prosecutors' offices and working for a criminal defense firm. The committee concluded that the request is directly dealt with by RPC 1.11, and that to the extent additional issues and initial complications may arise, RPC 1.7 also applies.

The lawyer's stated facts were that the lawyer would not represent a private client in connection with a matter in which the lawyer personally participated as a public officer (RPC 1.11(a)); would not disclose confidential government information about a person acquired while a public officer (RPC 1.11(b)); and would not, while working as a public officer, participate in matters involving a client for whom the lawyer had done private-sector work (RPC 1.11(c)(1)). On those facts, the committee concluded the lawyer would appear to be in compliance with the Rules of Professional Conduct, and noted the Rules also require compliance with any additional conflict-of-interest rules in effect for the city and county.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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. Washington's cited rules correspond to ABA Model Rules 1.7 (conflicts of interest) and 1.11 (special conflicts for former and current government officers and employees).

Common questions

Q: Can a lawyer move back and forth between prosecution and criminal defense?

A: The committee concluded that, on the stated facts, the lawyer would appear to comply with the Rules; the question is governed by RPC 1.11, with RPC 1.7 also applying.

Q: What conduct did the lawyer represent avoiding?

A: That the lawyer would not handle a private matter the lawyer worked on as a public officer (RPC 1.11(a)), would not disclose confidential government information (RPC 1.11(b)), and would not, as a public officer, participate in matters involving a former private client (RPC 1.11(c)(1)).

Q: Are the state rules the only limit?

A: No. The committee noted the Rules also require compliance with any additional conflict-of-interest rules in effect for the city and county.

Background and rules framework

The opinion applied RPC 1.11 (special conflicts of interest for former and current government officers and employees, corresponding to ABA Model Rule 1.11) as the governing rule, with RPC 1.7 (conflicts of interest, corresponding to ABA Model Rule 1.7) supplying additional analysis. The committee walked through the RPC 1.11(a), (b), and (c)(1) limits the lawyer represented observing and tied the favorable conclusion to those facts, while flagging applicable local conflict rules.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7
• ABA Model Rule 1.11 (special conflicts for government officers and employees); Washington RPC 1.11

See also

• WA Ethics Op. 1738: No-Contact Rule in a Non-Legal Job
• WA Ethics Op. 1740: 'Of Counsel' to Two Firms
• WSBA Ethics Op. 1718: Leaving In-House for a Rival Field

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=815

Original opinion text

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

Advisory Opinion: 1746
Year Issued: 1997
RPC(s): RPC 1.7; 1.11
Subject: Conflict of interest; lawyer alternating between prosecutors' office and criminal defense firm

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry regarding whether the Rules permit your alternating working for prosecutors' offices with working for a criminal defense firm. It is the opinion of the Committee that your request is directly dealt with by RPC 1.11. To the extent that additional issues and initial complications may arise, RPC 1.7 also applies.

The facts that you set forth included: (1) that you would not be representing a private client in connection with a matter that you personally participated in as a public officer RPC 1.11(a); (2) that you would not be disclosing confidential government information about a person acquired while you were a public officer, RPC 1.11(b); and (3) that you would not, while working as a public officer participate in matters involving a client for whom you had done work in the private sector, RPC 1.11(c)(1). Under the facts presented, the Committee concluded that you would appear to be in compliance with the Rules of Professional Conduct. Please note that the Rules also require you to comply with any additional conflict of interest rules that might be in effect for the city and county.