When a prosecuting attorney or an assistant is personally disqualified from a matter, is the whole prosecutor's office disqualified?

Plain-English summary

Because many prosecuting attorneys and their assistants also engage in the private practice of law, they sometimes find themselves disqualified from acting on behalf of the State or its subdivisions, raising the question whether the entire staff of a prosecuting attorney's office is barred when one staff member is personally disqualified. The Committee had addressed this under the former Code of Professional Responsibility in L.E.I. 85-2, where it concluded that a lawyer in a prosecuting attorney's office is not a member of a law firm for purposes of imputed disqualification, in criminal or civil matters, relying in part on ABA Formal Opinion 342 (1975) that there should be no imputed disqualification as long as the personally disqualified attorney is screened from participating directly or indirectly. L.E.I. 85-2 noted that salaried government attorneys do not have a financial interest in the success of departmental representation as private practitioners do, and that there is greater hardship on the State to have a special prosecutor appointed than on a private client to obtain new counsel.

With the adoption of the Rules of Professional Conduct effective January 1, 1989, the Committee revisited the issue. It noted that the Rules codify the gloss the ABA and Committee had given the Code by providing screening mechanisms for government lawyers: Rule 1.11(c)(1) bars a lawyer serving as a public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice, and the comment to Rule 1.11 states that paragraph (c) does not disqualify other lawyers in the agency, provided the disqualified attorney is screened. The Committee observed that Rule 1.11(c)(1) is both more stringent and more lenient than the general conflict rules for private attorneys: more stringent than Rule 1.9 because it reaches matters even when the representation does not involve switching sides (to prevent government lawyers from using public powers to benefit private individuals), and more lenient because the government attorney's disqualification is not imputed to the entire agency, whereas a private attorney's disqualification is imputed to all lawyers in a firm under Rule 1.10.

The Committee concluded that the differences between private firms and prosecutor offices it identified in L.E.I. 85-2 still exist, but that neither the opinion nor a literal reading of Rule 1.11 gives sufficient consideration to the fact that when it is the Prosecuting Attorney who is disqualified, his position as supervisor and employer of his assistants calls into question the practical effect of screening. In the interests of fairness to the defendant and public confidence in the impartiality of a prosecution, the Committee concluded that when a Prosecuting Attorney is disqualified for any reason, that disqualification is imputed to the entire office; but when an assistant is disqualified for any reason, the assistant may be screened from participation and other assistants or the Prosecuting Attorney may represent the State. The Committee added that although the screening mechanism in Rule 1.11 technically applies only when the disqualification arises from prior representation, it perceived no distinction meriting a more stringent standard when the disqualification arises from other sources such as a relationship to a witness or party.

Currency note

This opinion was issued in 1992, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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: If the elected prosecutor has a conflict, can an assistant still handle the case?

A: No. The opinion concluded that when the Prosecuting Attorney is disqualified for any reason, the disqualification is imputed to the entire office, because his role as supervisor and employer undermines the practical effect of screening.

Q: If only an assistant prosecutor has a conflict, must the whole office step aside?

A: No. The opinion concluded the disqualified assistant may be screened from the matter and other assistants or the Prosecuting Attorney may represent the State.

Q: Did the source of the assistant's conflict matter (prior representation versus a personal relationship)?

A: No. The opinion stated that although Rule 1.11's screening mechanism technically applies only to disqualifications from prior representation, the Committee perceived no distinction warranting a stricter rule for conflicts arising from a relationship to a witness or party.

Background and rules framework

The opinion interpreted the West Virginia Rules of Professional Conduct (effective January 1, 1989) governing conflicts and government lawyers, departing in part from the Committee's earlier Code-era opinion L.E.I. 85-2. It read Rule 1.11(c)(1) (successive government and private employment) against Rule 1.9 (duties to former clients) and Rule 1.10 (imputed disqualification of a private firm), concluding the elected prosecutor's supervisory role justified imputing his disqualification to the whole office while allowing screening for a disqualified assistant. It relied in part on ABA Formal Opinion 342 (1975).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / WV Rule 1.9 (duties to former clients)
• Model Rule 1.10 / WV Rule 1.10 (imputed disqualification in a firm)
• Model Rule 1.11 / WV Rule 1.11(c) (successive government and private employment; screening of government lawyers)

Other opinions cited:

• ABA Formal Opinion 342 (1975): no imputed disqualification of a government office where the personally disqualified lawyer is screened
• L.E.I. 85-2: the bar's Code-era opinion treating a prosecutor's office as not a "firm" for imputation

See also

• WV Ethics Op. 93-03: Judge as Assistant Prosecutor
• WV Ethics Op. 93-01: Pro Bono Program Conflicts
• OH BPC Op. 2014-002: Part-Time Prosecutor Firm Conflicts

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d40a629ff69c91e83.pdf

Original opinion text

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

L.E.I. 92-01

Imputed Disqualification of Prosecuting Attorneys
And Their Assistants

Because many prosecuting attorneys and their assistants engage in the private practice of law, they not infrequently find themselves disqualified from acting on behalf of the State or its subdivisions. The question thus arises whether the entire staff of a prosecuting attorney's office is prohibited from representing the State or county in matters when one of the staff is personally disqualified.

The Committee on Legal Ethics considered this matter under the Code of Professional Responsibility in L.E.I. 85-2. Although the Code did not exempt public lawyers from imputed disqualification, the Committee expressed its opinion that a lawyer in a prosecuting attorney's office is not a member of a law firm for purposes of imputed disqualification, in criminal or civil matters. The Committee relied, in part, upon Formal Opinion 342 (1975) of the American Bar Association's Committee on Ethics and Professional Responsibility, which found that there should be no imputed disqualification as long as the attorney with the personal disqualification is screened from participating, either directly or indirectly.

L.E.I. 85-2 noted that important differences exist between private firms and a prosecuting attorney's office which warranted different disqualification standards. Salaried government attorneys do not have a financial interest in the success of departmental representation inherent in private practice; and there is greater hardship on the State to have a special prosecutor appointed than on a private client to obtain new counsel.

The Court adopted the Rules of Professional Conduct, effective January 1, 1989. The Committee considers it appropriate to revisit the issue of imputed disqualification of prosecuting attorneys under the Rules.

The Rules codify the gloss given to the Code by the ABA and the Committee by specifically providing for screening mechanisms for government lawyers under certain circumstances. Rule 1.11(c)(1) provides that a lawyer serving as a public officer or employee shall not "participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be authorized to act in the lawyer's stead in a matter...." The Comment to Rule 1.11 states: "Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated." The disqualified attorney must be screened from participation.

Rule 1.11(c)(1) is both more stringent and more lenient than the general conflict rules which apply to private attorneys. It is more stringent because Rule 1.9 only prohibits a lawyer from taking a position adverse to a former client on the same or a substantially similar matter; whereas Rule 1.11(c)(1) disqualifies a government attorney even when the representation does not involve switching sides. The latter seeks to prevent government attorneys from using their public powers to benefit private individuals. The Rule is more lenient because the government attorney's disqualification is not imputed to the entire agency; whereas a private attorney's disqualification is imputed to all lawyers associated in "a firm" under Rule 1.10.

The differences between private firms and prosecuting attorney offices which the Committee found warranted different disqualification standards in L.E.I. 85-02 still exist. However, the Committee does not believe that the opinion or a literal reading of Rule 1.11 gives sufficient consideration to the fact that when it is the Prosecuting Attorney who is disqualified, his position as supervisor and employer of his/her assistants calls into question the practical effect of screening.

In the interests of fairness to the defendant and public confidence in the impartiality of a prosecution, the Committee believes that when a Prosecuting Attorney is disqualified for any reason, that disqualification is imputed to the entire office. When an assistant is disqualified for any reason, he/she may be screened from participation in the matter, and other assistants or the Prosecuting Attorney may represent the State.

This matter being adopted by the full Committee on Legal Ethics on February 7, 1992.

Charles M. Love, III, Chairman
Committee on Legal Ethics
The West Virginia State Bar

[Footnotes:]
1. The Comment to Rule 1.10 defines the term "firm" as: lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization or in a legal services organization.
2. Technically, the screening mechanism in Rule 1.11 applies only when the disqualification comes from prior representation and not from other sources, such as relation to a witness or opposing party. The Committee does not perceive a distinction meriting a more stringent standard in the latter situation. For example, an assistant's disqualification in a prosecution for assault by a husband is no different whether he/she represents the wife in a divorce proceeding or whether the wife is the assistant's aunt.