When a former prosecutor joins a public defender's office in West Virginia, can the office screen them so it can keep handling the cases, or is the whole office disqualified?

Plain-English summary

The Lawyer Disciplinary Board addressed whether a public defender corporation can use screening when a former prosecuting attorney joins it, including as the supervisory "public defender" or "chief public defender." The opinion assumes the public defender corporation is structured under W.Va. Code §§ 29-21-1 et seq. so that the supervisory attorney has no authority to hire, fire, or make similar employment decisions, which remain with the Board of Directors overseeing the corporation.

On that assumption, the Board treats the situation as a former-government-employee conflict governed by Rule 1.11, not by the general imputation rule of Rule 1.10. Under Rule 1.11(a), a former government lawyer may not represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate agency gives informed consent confirmed in writing. The opinion concludes that this particular conflict is non-waivable because the State may not waive conflicts where the public interest is involved, citing State ex rel. Morgan Stanley v. MacQueen. So if the former prosecutor participated personally and substantially in a matter, that matter must be referred to an attorney who is not a public defender in the same public defender corporation.

For matters the former prosecutor did not participate in personally and substantially, but that were active in the prosecutor's office during the prosecutor's employment, the opinion concludes screening is available under Rule 1.11(b): the disqualified lawyer is timely screened from any participation, and written notice is promptly given to the appropriate government agency. The opinion stresses that screening must cover both paper and electronic files, that each public defender corporation should have a written screening policy, and that, consistent with the supervisory attorney's role, the supervisor must be screened from all aspects of the screened cases, with no interference in the internal decision-making and no employment consequences for assistant public defenders who exercise independent judgment on those cases.

In practice

Under this opinion, screening a former prosecutor inside a West Virginia public defender corporation turns on whether the prosecutor participated personally and substantially in the specific matter. The opinion holds that, under Rule 1.11(b), screening (a timely screen plus prompt written notice to the appropriate government agency) is available for matters the prosecutor did not handle personally and substantially. The opinion holds that, where the prosecutor did handle the matter personally and substantially, screening is not available and the matter must be referred out to a non-public-defender attorney, because the conflict is non-waivable.

The opinion identifies specific screening expectations: a written screening policy addressing both paper and electronic files, written acknowledgment from all office employees of their knowledge of the screen (per Rule 1.0(k) and Comment [6] to Rule 1.11), and, where the screened lawyer is the supervisory public defender, a screen from all aspects of the screened cases with no interference in internal decision-making. The opinion adds that whether a public defender corporation is itself a "law firm" is not dispositive here, and that other conflict questions not specific to this prosecutor-to-public-defender scenario are analyzed under Rules 1.7, 1.9, and 1.10.

Common questions

Q: If a former prosecutor joins our public defender office, is the whole office automatically disqualified from that prosecutor's old cases?

A: No, not automatically. The opinion concludes that screening under Rule 1.11(b) is available for matters the former prosecutor did not participate in personally and substantially, so the office can continue those cases if it screens the prosecutor and gives written notice to the appropriate government agency.

Q: What happens with a case the prosecutor handled personally and substantially?

A: The opinion concludes that conflict is non-waivable, because the State may not waive conflicts where the public interest is involved (citing State ex rel. Morgan Stanley v. MacQueen). That matter must be referred to an attorney who is not a public defender in the same public defender corporation.

Q: Does it matter that the new prosecutor is the supervising "chief public defender"?

A: The opinion assumes the supervisory attorney has no hiring or firing authority (those duties remain with the Board of Directors). On that assumption, screening is available, but the opinion requires that the supervisor be screened from all aspects of the screened cases, with no interference in internal decision-making and no employment consequences for assistant public defenders handling those cases.

Q: What does an effective screen require?

A: The opinion concludes the public defender corporation must determine the measures needed to screen the lawyer from both paper and electronic files, should adopt a written screening policy, and should obtain written acknowledgment from all office employees of their knowledge of the screen, consistent with Rule 1.0(k) and Comment [6] to Rule 1.11.

Background and rules framework

The opinion interprets the West Virginia Rules of Professional Conduct, adopted by the Supreme Court of Appeals of West Virginia. Rule 1.11 (Model Rule 1.11), "Special Conflicts of Interest for Former and Current Government Officers and Employees," governs the migration of a government lawyer into private or public-defender practice. Rule 1.11(a) makes a former government lawyer subject to Rule 1.9(c) and bars personal representation in matters the lawyer handled personally and substantially as a public officer absent the agency's informed written consent. Rule 1.11(b) sets a special imputation rule that lets a firm continue the matter if the disqualified lawyer is timely screened and written notice is given, and Comment [2] makes clear that Rule 1.10 (the general imputation rule) does not apply to these conflicts. The opinion also cites the definitions in Rule 1.0(c) ("firm") and Rule 1.0(k) (screening), and notes that other, non-government-migration conflicts are governed by Rules 1.7, 1.9, and 1.10.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / WV RPC 1.11 (special conflicts for former and current government officers and employees; screening under 1.11(b); Comments [2] and [6])
• Model Rule 1.9 / WV RPC 1.9(c) (duties to former clients)
• Model Rule 1.10 / WV RPC 1.10(d) (imputation; disqualification of those associated with former or current government lawyers governed by Rule 1.11)
• Model Rule 1.7 / WV RPC 1.7 (conflict of interest; current clients)
• Model Rule 1.0 / WV RPC 1.0(c) ("firm" or "law firm") and 1.0(k) (screening)

Statutes:

• W.Va. Code §§ 29-21-1 et seq. (public defender corporations)
• W.Va. Code § 29-21-15(c) (authority over employment decisions)

Cases:

• State ex rel. Morgan Stanley v. MacQueen, 187 W.Va. 97, 416 S.E.2d 55 (W. Va. 1992), the State may not waive conflicts where the public interest is involved

Other opinions cited:

• WV L.E.I. 85-2: Lawyers Serving Together in a Prosecuting Attorney's Office Are Not Members of a "Law Firm" for Purposes of Imputed Disqualification

See also

• VA LEO 185: Defending criminal cases where a spouse is an assistant Commonwealth's Attorney
• VA LEO 1799: Prosecutor conflict where defense counsel is the prosecutor's former partner
• VA LEO 240: Screening a lateral partner to keep an adverse representation

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d447e66c3a12f496f.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.O. 2018-02

CONFLICTS IN A PUBLIC DEFENDER'S OFFICE

INTRODUCTION

The Lawyer Disciplinary Board (Board) received a request for a formal legal ethics opinion addressing whether screening was available in a public defender's office when a former prosecuting attorney[1] takes a position as a supervisory attorney (known as "the public defender" or "chief public defender") in a public defender corporation/office. The Board recognizes that a Board of Directors oversees a "public defender corporation" pursuant to W.Va. Code §§ 29-21-1 et seq. This opinion assumes that under this office/corporation structure, the supervisory attorney ("the public defender" or "chief public defender") does not have authority to hire or fire or otherwise make such employment related decisions and that those duties remain with the Board overseeing the public defender corporation.[2] Provided that this assumption is correct, the Board advises that screening is available pursuant to Rule 1.11 [Special Conflicts of Interest for Former and Current Government Officers and Employees] of the West Virginia Rules of Professional Conduct, unless the former prosecuting attorney participated personally and substantially in the matter.

DISCUSSION

Rule 1.11(a) provides, in pertinent part, that "..., a lawyer who has formerly served as public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate agency gives its informed consent, confirmed in writing, to the representation." However, the conflict is non-waivable because the State may not waive conflicts especially where the public interest in involved. See also, State ex rel. Morgan Stanley v. MacQueen, 187 W.Va. 97, 416 S.E.2d 55 (1992). Therefore, the Board advises that if the former prosecuting attorney participated personally and substantially in the matter, then the matter must be referred to an attorney who is not a public defender in the same public defender corporation.

For matters in which the former prosecuting attorney did not participate in personally and substantially, but were nonetheless active in the prosecuting attorney's office at the time of the attorney's employment in that office, the Board advises that screening of the former prosecuting attorney from access to those cases is available pursuant to Rule 1.11(b). Rule 1.11(b) provides, in pertinent part, that when a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter ....; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. Comment [2] to Rule 1.11 provides, in part, that "Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice." See also, Rule 1.10(d), which states that "[t]he disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11."

In regard to screening, the Board advises that the public defender corporation/office must determine what measures need to be taken to effectively screen the former prosecuting attorney from the case, keeping in mind both paper and electronic files. For example, each public defender corporation should have a written policy on screening procedures. See also, Rule 1.0(k) and Comment [6] to Rule 1.11 which detail screening requirements under the West Virginia Rules of Professional Conduct, including an obligation to obtain written acknowledgment from all office employees concerning their knowledge of the screening. The Board also wants to make clear that consistent with its understanding of the supervisory attorney position (known as "the public defender" or "chief public defender"), it is necessary that the supervisor be screened from all aspects of the screened cases. The Board advises that there can been no interference by the supervisory attorney with the internal decision making process and that assistant public defenders must be free to exercise his or her independent legal judgement in the representation of his or her clients with no expectation that there will be any employment consequences as a result of his or her handling of these screened cases.

Finally, the Board does not believe that the issue of whether a public defender corporation/office is or is not a law firm is dispositive to this specific conflict of interest issue because it involves the conflict of a former government employee which is governed by Rule 1.11 of the West Virginia Rules of Professional Conduct.[3] Therefore, all other questions involving general conflicts of interest, i.e., those not specific to the conflict of interest posed when a prosecuting attorney takes a position in a public defender corporation discussed above, would be determined pursuant to Rules 1.7 [Conflict of Interest; Current Clients], 1.9 [Duties to Former Clients] and 1.10 [Imputation of Conflicts of Interest: General Rule] of the West Virginia Rules of Professional Conduct.

CONCLUSION

The Board advises that when a prosecuting attorney takes a position in a public defender corporation, either as supervisory attorney (known as "the public defender" or "chief public defender") or as an assistant public defender, screening is available for matters in which the former prosecuting attorney did not participate personally and substantially pursuant to Rule 1.11(b) of the West Virginia Rules of Professional Conduct. However, screening is not available if the former prosecuting attorney participated personally and substantially in the matter. In that case, the matter must be referred to an attorney who is not a public defender in the same public defender corporation. All other conflict of interest issues involving the attorneys in a public defender corporation can generally be analyzed pursuant to Rules 1.7, 1.9 and 1.10 of the West Virginia Rules of Professional Conduct.

APPROVED by the Lawyer Disciplinary Board on the 28th day of September, 2018, and ENTERED this 28th day of September, 2018.

James R. Akers, II, Esquire, Chairperson
Lawyer Disciplinary Board

[1] In the request for a formal legal ethics opinion, the prosecuting attorney in question was an assistant prosecuting attorney.

[2] See, W.Va. Code § 29-21-15(c).

[3] The Board notes that a public defender corporation/office would likely be considered a law firm under the West Virginia Rules of Professional Conduct. Rule 1.0(c) of the Rules of Professional Conduct states that "[f]irm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional partnership, professional corporation, limited liability entity, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization." In addition, Comment [3] to Rule 1.0 states that "[w]ith respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct." See also, Comment [4] which provides that "[s]imilar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending on the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules." But see, L.E.I. 85-2, "Lawyers Serving Together in a Prosecuting Attorney's Office are not Members of a 'Law Firm' for Purposes of Imputed Disqualification" wherein the Board found that Prosecuting Attorney's offices are not considered to be law firms for purposes of the West Virginia Rules of Professional Conduct.