After a lawyer is elected prosecuting attorney, can his office associates or partners defend criminal cases in adjacent counties or in federal court?

Plain-English summary

The inquirer was about to be elected prosecuting attorney and asked whether his office associates, Messrs. B and C, could engage in criminal defense in adjacent counties of the state and in the federal courts. He and his associates shared office expenses, secretaries, a library, office space, and equipment, sometimes shared the caseload or stood in for one another, used a common telephone answered "A, B & C," and an office sign reading "A, B & C, Attorneys at Law." After election he planned a complete physical separation of the prosecutor's office from his private office, where he would keep a civil practice.

The Committee first observed that, although they might not have a formal partnership, their letterhead and office arrangements likely held them out as partners, which DR 2-102(B) and (C) address; it referred them to ABA Formal Opinion 310. But it explained that whether they were partners had little to do with the question. Citing Rule IV(c) of the Trial Court Rules, the Committee noted that neither the prosecuting attorney, nor an assistant prosecutor, nor the office associate or partner of either may appear as defense counsel in a criminal case in that court, and that a prosecutor may not appear as defense counsel in any other court of the state.

Turning to DR 5-105(D), which imputes a required declination or withdrawal to a lawyer's partners, associates, and affiliated lawyers, and relying on ABA Opinions 30 (a public prosecutor in one state may not defend an accused in another state), 262 (a prosecuting attorney may not represent criminal defendants in federal courts), and 922 (the associates of a prosecutor or his assistants may not represent criminal defendants or try criminal cases), the Committee concluded that it would be improper for Messrs. B and C, whether partners or merely associated, to represent criminal defendants in any courts of the state or in federal courts. It added that, under Canon 9, such representation by a prosecutor's partners or associates gives the appearance of impropriety.

Currency note

This opinion was issued in 1976, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. It also relies on Rule IV(c) of the Trial Court Rules as they then stood. Subsequent rule amendments or later opinions may have changed the analysis; later West Virginia opinions revisited the imputed disqualification of prosecutors. Treat this page as historical context, not current guidance. Verify against current rules before relying on any rule or requirement mentioned here.

Common questions

Q: Could the prosecutor's associates defend criminal cases in nearby counties?

A: No. The opinion concluded that, in view of DR 5-105(D), it would be improper for the prosecutor's associates or partners to represent criminal defendants in any courts of the state, because the prosecutor's own disqualification is imputed to affiliated lawyers.

Q: What about defending in federal court?

A: Also no. The opinion concluded the associates could not represent criminal defendants in federal courts either, relying on ABA Opinions 262 and 922 and the imputation rule of DR 5-105(D).

Q: Did it matter whether they were formally partners?

A: Not to the result. The opinion said whether they were partners had little to do with the question; DR 5-105(D) reaches partners, associates, and any other affiliated lawyer alike.

Q: Why did the Committee mention the appearance of impropriety?

A: Under Canon 9, a lawyer should avoid even the appearance of impropriety. The opinion concluded that a prosecutor's partners or associates representing criminal defendants in other state or federal courts gives that appearance.

Background and rules framework

The opinion applied DR 5-105(D) of the West Virginia Code of Professional Responsibility, which imputes a required declination or withdrawal to a lawyer's partners, associates, and affiliated lawyers, together with DR 5-105(B). It also discussed DR 2-102(B) and (C) (partnership names) and Canon 9 (avoiding the appearance of impropriety), and read them against Rule IV(c) of the Trial Court Rules governing the appearance of prosecutors and their associates as defense counsel.

Citations and references

Rules of Professional Conduct (as cited):

• DR 5-105(D) (imputation: if one lawyer must decline or withdraw, no partner or affiliated lawyer may accept or continue the employment)
• DR 5-105(B) (discontinuing employment involving differing interests)
• DR 2-102(B), (C) (use of a partnership name only where lawyers are in fact partners)
• Canon 9 (avoiding even the appearance of impropriety)

Court rules:

• Rule IV(c), Trial Court Rules for trial courts of record (prosecutor, assistant, and their associates/partners may not appear as defense counsel)

Other opinions cited:

• ABA Formal Opinion 310 (partnership names where lawyers are not partners)
• ABA Opinion 30 (a public prosecutor may not defend an accused, even in another state)
• ABA Opinion 262 (a prosecuting attorney may not represent criminal defendants in federal courts)
• ABA Opinion 922 (associates of a prosecutor or his assistants may not represent criminal defendants or try criminal cases)

See also

• WVSB Ethics Op. 85-2: Prosecutor's office not a law firm for imputed disqualification
• WVSB Ethics Op. 92-01: Imputed disqualification of prosecuting attorneys
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 77-9: Prosecutor representing a workers' compensation claimant

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e2f3bf3444714cbb1.pdf

Original opinion text

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

WEST VIRGINIA STATE BAR JOURNAL
Winter, 1976
Volume 2, Number 4

PROSECUTING ATTORNEY AND ASSOCIATES

FORMAL OPINION 76-3

Reference is made to your letter asking for the opinion of this Committee as to whether your associates, Messrs. B and C, may engage in criminal defense in adjacent counties of this state and in the federal courts after you have been elected as prosecuting attorney.

You state in your letter that you and your associates share office expenses and secretaries, as well as a library, office space, and other equipment. From time to time you either share in the case load, work jointly on cases, or, in emergencies, stand in and represent each other. After your election you plan to move into offices in the X County Courthouse. At the same time you plan to maintain your connection with your present office and engage in civil practice from that office. You further state there will be a complete physical separation of the prosecutor's office and your private office. Furthermore, neither of your associates will have access to or use the prosecutor's office.

Although you did not so state, we assume from your letter that you and your associates have a common telephone number and that the telephone is answered by identifying the office as A, B & C. We further assume that your office sign identifies you as A, B & C, Attorneys at Law.

While you may not have a partnership arrangement among yourselves whereby you share responsibility and liability, it is very likely that your arrangement would in fact be so regarded. Your private arrangements as to sharing responsibility and liability would not alter your liability to third persons if in fact you have been holding yourself out as partners. It seems to the Committee that you may very well be regarded as holding yourselves out as partners. Certainly, your letterhead and office arrangements give that impression. DR 2-102(B) and (C) proscribe the use of a partnership name unless the lawyers are in fact partners. Where there is no sharing of financial responsibility, the joining of two or more names of persons practicing together into a title for a firm is misleading. Where there is no sharing of liability and responsibility, each lawyer should use separate stationery, with his own name and not that of a firm on it. He should not join his name with others on cards, letterheads, in law lists, or in telephone directories. The door to the common offices may contain the names of the persons practicing therein no more closely connected than the following example:

LAW OFFICES

A.
B.
C.

You are referred to Formal Opinion 310 of the American Bar Association's Committee on Professional Ethics.

However, whether you be regarded as partners has very little to do with the question you have posed. See DR 5-105(B).

Your attention is directed to Rule IV(c) of Trial Court Rules for trial courts of record, as amended, which provides:

(c) Neither the prosecuting attorney, nor the assistant prosecuting attorney of this county, nor the office associate or partner of either the prosecuting attorney or assistant prosecuting attorney of this county shall appear as counsel for the defendant in any criminal case pending in this court, nor shall the prosecuting attorney or assistant prosecuting attorney of any other county appear for the defendant in a criminal case pending in this court.

Clearly, the partner or office associate of the prosecuting attorney cannot appear as defense counsel in X County. The prosecutor is prohibited from appearing as defense counsel in any other court of this state.

DR 5-105(D) of the Code of Professional Responsibility provides as follows:

(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.

In Opinion 30 the Committee on Ethics and Professional Responsibility of the American Bar Association held that a public prosecutor in one state may not ethically defend a person accused of a crime in another state, even though the case is to be tried in another state.

In Opinion 262 the Committee stated that a prosecuting attorney may not represent criminal defendants in federal courts.

In Opinion 922 the Committee held that it was not proper for the associates of the prosecuting attorney or his assistants to represent criminal defendants or to try criminal cases in criminal courts.

In view of DR 5-105(D), we conclude that it would be improper for Messrs. B and C, whether they be your partners or simply associated with you, to represent criminal defendants in any courts of this state or in federal courts.

Canon 9 of the Code of Professional Responsibility states that a lawyer should avoid even the appearance of impropriety. For the partners or associates of a prosecuting attorney or his assistants to represent criminal defendants in other state courts or in federal courts gives the appearance of impropriety.