Can a family law deputy prosecutor also serve part-time as a substitute family law court facilitator without a conflict of interest?

Plain-English summary

The inquirer is a Family Law Deputy Prosecutor in a Washington county who had previously worked one or two days a month as a Family Law Court Facilitator for the county superior court, reviewing or preparing court documents for pro se litigants in family law cases, including child support modification and, on rare occasion, contempt. She asked whether she may periodically serve as a substitute Family Law Court Facilitator, expressing concern about possible conflicts of interest and the appearance of impropriety.

The committee concluded that the request is dealt with by RPC 1.12 and RPC 1.7. While the inquirer could assist an individual while acting as a substitute facilitator, the individuals she helped in that role might later be individuals to whom she would be adverse when she represents the county. The committee concluded that if she undertook these additional activities, she may be at least in an apparent conflict of interest position under RPC 1.7 and 1.12. It added that she may also be subject to additional rules of the county prosecutor's office.

In practice

Under this opinion, and under RPC 1.7 and 1.12 as they stood at the time, a family law deputy prosecutor who also serves as a substitute court facilitator may be at least in an apparent conflict of interest, because individuals she assists as a facilitator could later be adverse to her when she represents the county. The committee framed the concern as an apparent conflict rather than a flat prohibition, and noted that the lawyer may also be subject to additional rules of the prosecutor's office.

Common questions

Q: Can a deputy prosecutor also serve as a substitute court facilitator in the same county's family law cases?

A: The committee concluded she may be at least in an apparent conflict of interest under RPC 1.7 and 1.12 if she does, because people she helps as a facilitator could later be adverse to her when she represents the county.

Q: Which rules govern this dual role?

A: RPC 1.12 and RPC 1.7. The committee said the inquirer's request "is dealt with by RPC 1.12 and RPC 1.7."

Q: Why is helping pro se litigants as a facilitator a problem for a prosecutor?

A: Because the individuals the inquirer helped while acting as a substitute facilitator might later be individuals to whom she would be adverse when she represents the county.

Q: Are the conduct rules the only constraint?

A: No. The committee noted she may also be subject to additional rules of the county prosecutor's office.

Background and rules framework

The opinion applies Washington RPC 1.7 (concurrent conflicts of interest; the counterpart to Model Rule 1.7) and RPC 1.12 (former judge, arbitrator, mediator, or other third-party neutral; the counterpart to Model Rule 1.12) to a lawyer who holds a government prosecutor position and also serves intermittently as a court facilitator for pro se litigants. The committee treated the facilitator role and the county-representation role as potentially adverse over time.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7 (concurrent conflicts of interest)
• Model Rule 1.12 / Washington RPC 1.12 (former judge, arbitrator, mediator, or other third-party neutral)

See also

• WA Ethics Op. 1727: Former Guardian ad Litem Later Representing the Guardian
• WA Ethics Op. 2092: Retired Judge Representing a Former Courtroom Party
• WA Ethics Op. 1325: Part-Time Municipal Judge and Firm Adverse to the Municipality

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1590

Original opinion text

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

Advisory Opinion: 2140
Year Issued: 2007
RPC(s): RPCs 1.7 & 1.12
Subject: Conflict of interest in serving simultaneously as Family Law Prosecutor and Court Facilitator

The inquirer is employed as a Family Law Deputy Prosecutor in a Washington County. She previously worked as a Family Law Court Facilitator for one or two days per month for the County Superior Court. She reviewed or prepared court documents for pro se litigants in family law cases which included child support modification and, on rare occasion, contempt.

The inquirer asks whether she may function periodically as a substitute Family Law Court Facilitator. She is concerned about possible conflicts of interest and appearance of impropriety.

It is the opinion of the Committee that the inquirer’s request is dealt with by RPC 1.12 and RPC 1.7. While the inquirer could assist an individual when she was acting as a substitute Family Law Court Facilitator, nevertheless it is possible that the individuals the inquirer helped in one circumstance might be individuals to whom she would later be adverse when the inquirer represents the county. The Committee concluded that if the inquirer undertook these additional activities, she may be at least in an apparent conflict of interest position under RPC 1.7 and 1.12. The inquirer may also be subject to additional rules of the county prosecutor’s office.