Can lawyers appointed as special prosecutors keep their private criminal-defense practice while serving, and under what safeguards?

Plain-English summary

When X took office as prosecuting attorney on January 1, 1981, bringing assistants S and T, the three withdrew from 17 criminal cases in which they had represented defendants. Circuit Judge Z provided replacement defense counsel with client approval and concluded that letting the new prosecutors prosecute their own former clients would create an appearance of impropriety. Because appointing the prior prosecuting attorney was ruled out and geography made an adjoining-circuit special prosecutor impractical, the judge recruited two experienced bar members, O and R, as special prosecutors, but did not want to make them give up their criminal-defense practices, given the low pay, the limited duration, and the defendants' speedy-trial rights. Judge Z and the special prosecutors asked the Committee for guidelines on representing private clients while serving.

The Committee acknowledged the conflict. Allowing special prosecutors to retain a criminal-defense practice could, without safeguards, create an actual conflict of interest, invite public criticism, and call the prosecutor's exercise of discretion into question. A lawyer must exercise independent professional judgment free of personal interests or those of other clients (DR 5-101 and DR 5-105), and loyalty can be compromised when a lawyer serves "more than one master." The prosecutor also owes a duty to seek justice diligently while treating the accused fairly (EC 7-13, DR 7-103), and could be tempted to over- or under-prosecute. The Committee cited its earlier opinions (LEI 78-1, LEI 78-2, and a 1952 opinion) and Aldridge v. Capps for the principle that a prosecutor cannot profit from information gained in official duties.

The Committee recognized that State ex rel. Sowa v. Sommerville prohibits an assistant prosecutor from defending clients in criminal cases, and that some appearance of impropriety would exist with any lawyer the judge might appoint. But because the special prosecutors would serve for a limited duration, with a limited caseload, and, most importantly, under strict court monitoring, it found a narrow exception to the general conflict rule, limited to these unique facts, permissible. That exception would reconcile the potential conflict and appearance of impropriety with the defendants' speedy-trial rights and the public's interest in having offenses prosecuted and finally determined.

The Committee attached safeguards. First, the special prosecutor's retention of private clients must be closely monitored case-by-case by the court, and the special prosecutor must not defend criminal cases before the same venire before which he has acted as prosecutor. Second, each client of O and R must be made aware of any divergent interests and that no special benefit or harm will result, so the client can freely evaluate keeping O or R as defense counsel; and a notice, under court supervision, should identify the special prosecutor's clients and advise that the special prosecutor is entitled to no more consideration or information than any other defense counsel. Only after those safeguards, and only in the limited circumstances described, should the exception apply.

Currency note

This opinion was issued in 1982, before West Virginia replaced its Code of Professional Responsibility (the DR and EC provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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.

Common questions

Q: Could the court-appointed special prosecutors keep representing private criminal-defense clients?

A: Yes, under a narrow exception. The opinion allowed it because the special prosecutors served for a limited duration and caseload under strict court monitoring, and only if specified safeguards were met.

Q: What safeguards did the Committee require?

A: The opinion required case-by-case court monitoring of the special prosecutor's private clients, a bar on defending criminal cases before a venire the lawyer had prosecuted before, and notice to each client (and to the prosecutor's office) that the special prosecutor receives no greater consideration or information than any other defense counsel.

Q: Doesn't Sowa v. Sommerville forbid a prosecutor from defending criminal cases?

A: The opinion recognized that State ex rel. Sowa v. Sommerville prohibits an assistant prosecutor from defending clients in criminal cases, but treated this situation as a narrow, fact-specific exception justified by the limited duration and caseload and the strict court monitoring.

Q: Why allow any exception at all?

A: The opinion reasoned that a narrow exception reconciled the potential conflict and appearance of impropriety with the defendants' constitutional right to a speedy trial and the public's interest in having offenses prosecuted and finally determined.

Background and rules framework

The opinion applied the Code of Professional Responsibility's conflict provisions, DR 5-101 and DR 5-105, together with the prosecutor's duties under EC 7-13 and DR 7-103 and the public-policy statement in Rule IV(C) of the Trial Court Rules. It weighed those against State ex rel. Sowa v. Sommerville and the practical constraints of providing special prosecutors in a small circuit, fashioning a fact-limited exception conditioned on court monitoring and client notice.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-101 (lawyer's own interests must not affect independent professional judgment)
• DR 5-105 (declining or discontinuing employment involving differing interests)
• DR 7-103 (duties of a public prosecutor)
• EC 7-13 (prosecutor's duty to seek justice, not merely to convict, and to treat the accused fairly)

Court rules:

• Rule IV(C), Trial Court Rules (conflict of full-time prosecutors representing the state and private clients)

Cases:

• State ex rel. Sowa v. Sommerville, 280 S.E.2d 85 (W. Va. 1981), assistant prosecutor prohibited from defending clients in criminal cases
• Aldridge v. Capps, 58 Okla. 678, 156 P. 624, a prosecutor cannot profit from information gained in performing official duties

Other opinions cited:

• WVSB LEI 78-1 (Spring 1978): assistant prosecutor suit against the Board of Regents
• WVSB LEI 78-2 (Spring 1978): prosecutor may not handle a civil traffic-accident case after reviewing the traffic charges
• WVSB AO2 (Nov. 25, 1952): prosecutor cannot handle personal-injury claims relating to criminal investigations

See also

• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 85-2: Prosecutor's office is not a "law firm" for imputed disqualification
• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7f688d5e587716162d.pdf

Original opinion text

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

L.E.I. 81-9

(June 18, 1982)

SPECIAL PROSECUTING ATTORNEY'S REPRESENTATION OF OTHER CLIENTS

The opinion of the Committee has been asked upon the following inquiry:

On January 1, 1981, X took office as prosecuting attorney and brought with him to that office as assistant prosecuting attorneys S and T. Messrs. X, S and T withdrew from the 17 cases in which they represented criminal defendants. Other counsel were provided, with client approval, as replacement defense counsel by Circuit Judge Z, who agreed with the new prosecutors that to allow the new prosecuting attorney or his assistants to prosecute those defendants whom they had once represented would create an appearance of impropriety, subjecting the system to severe criticism.

Thus, the circuit judge felt it necessary to appoint special prosecuting attorneys to prosecute the former clients of X, S and T. Judge Z eliminated from consideration the appointment of the previous prosecuting attorney as special prosecutor for substantial reasons. Geographical considerations make appointment of a special prosecutor from an adjoining circuit impractical.

The circuit court judge procured two experienced bar members, O and R, to accept the appointment as special prosecutors. He did not wish to require them to withdraw from further criminal defense work because he did not think it fair to appoint them to work as special prosecuting attorneys at the low rate of pay available and, at the same time, to require them to give up their criminal defense practice. Their clients' speedy trial rights also require that their cases be considered promptly. Judge Z suggests that any appearance of impropriety could be alleviated by the court's close monitoring of such an arrangement. Judge Z and the special prosecutors, O and R, now ask the Committee for guidelines as to their representation of their private clients while serving as special prosecutors.

Appointing special prosecutors to office, while allowing them to retain a criminal defense practice, could, absent safeguards, create an actual conflict of interest, danger of public criticism, and subject the prosecutor's exercise of discretion to question.

Pursuant to Judge Z's proposed arrangement, a conflict might be perceived to exist between the special prosecutor's duty to his client and his statutory obligation to the public. A lawyer has a duty to exercise independent professional judgment on behalf of his client, free of personal interests, those of other clients, or those of a third party. (DR 5-101 and DR 5-105) Loyalty to a client may be compromised when a lawyer has more than "one master," namely, a private client and the state. This conflict is expressed, as to full-time prosecutors, in Rule IV(C) of the Trial Court Rules. Previous ethics opinions of the Committee indicate the dangers of such a conflict. L.E.I. 78-1 (Spring, 1978) (assistant prosecutor suit against Board of Regents); L.E.I. 78-2 (Spring, 1978) (prosecutor may not handle civil traffic accident case after review of traffic charges); and AO2 (November 25, 1952) (prosecutor cannot handle personal injury claims relating to criminal investigations).

The prosecuting officer has a duty to seek justice diligently while treating the accused with fairness. (EC 7-13, DR 7-103) In our state, the prosecutor acts under a discretion committed to him for the public good to vindicate this interest. Temptation could exist whereby the prosecutor may unconsciously become overzealous in his prosecution to obtain benefits for his own client, or he may prosecute without zeal because he favors the defense. Either of these practices is inconsistent with his prosecutorial duties and would seriously undermine the public's faith in the prosecutor's ability to fulfill his obligation to the state; consequently, some safeguard should be established to insure that the special prosecutor is acting with both zeal and fairness.

In a system in which the special prosecutor retains a criminal defense practice, safeguards must be taken to assure to those represented and prosecuted by the special prosecutor that their rights are not violated and that the clients of the special prosecutor receive no greater benefit nor suffer any harm from their defense counsel's temporary duty as a prosecutor. To avoid the danger of charges by the defendant that the prosecution was aided by inside information that the defendant provided to his defense counsel, the defendant-clients of the special prosecutors should agree to their lawyers' service as special prosecutors, while also being informed that no special benefit will be given them as clients of the special prosecutors. A prosecutor cannot profit by information gained in the course of performance of his official duties; public policy forbids. Aldridge v. Capps, 58 Okla. 678, 156 P. 624.

The Committee is aware of the authority in State ex rel. Sowa v. Sommerville, 280 S.E.2d 85 (W. Va. 1981), that prohibits an assistant prosecutor from defending clients in criminal cases, but in this unique set of circumstances, the possibility of the appearance of a conflict of interest exists with regard to any lawyer the circuit judge may choose to appoint as special prosecutor. Even though the possibility of the appearance of impropriety would ordinarily exist in a situation of this type, the Committee feels that since the special prosecutors are serving for such a limited duration and with a limited caseload and, most importantly, since the special prosecutors are serving under strict court monitoring, a narrow exception to the general rule regarding conflict of interest limited to the facts unique to this matter is permissible. Allowing here a narrow exception would reconcile the potential conflict of interest and appearance of impropriety with defendants' constitutional right to a speedy trial and the public's interest in having offenses prosecuted and finally determined. Several safeguards should be utilized to prevent abuse of this narrow exception.

First, the arrangements regarding the special prosecutor's retention of private clients should be closely monitored on a case-to-case basis by the court, and the special prosecutor must not be allowed to defend criminal cases before the same venire before which they have acted as prosecutor.

Second, it is crucial that each client of the special prosecutors, O and R, be made aware of any possible divergent interests and that no special benefit or harm will result from the service of O and R, so that each may freely evaluate his original choice to retain O or R as his defense counsel. Moreover, a notice should be given the prosecutor and assistants, under court supervision, identifying the special prosecutor's clients and advising that the special prosecutor is entitled to no more consideration or information than any other defense counsel.

Only after these safeguards have been provided and only in the limited circumstances established by the factual background stated in this opinion should the exception to the general rule regarding prosecutorial representation of private clients be allowed.