Attorney joining county attorney's office from private practice does not require vicarious disqualification of all other attorneys in county attorney's office from prosecution of attorney's former clients.

FACTS

The County Attorney's Office in County A has recently hired Attorney X to work in the Criminal Appellant Division. Prior to acceptance of this position, Attorney X was in private practice and had earlier been employed in the Public Defender's Office in County A. While at the Public Defender's Office and in private practice, Attorney X represented a particular criminal defendant and discussed trial errors with co-defendant's counsel. Two Deputy County Attorneys in County A's County Attorney's Office have been assigned to prosecute co-conspirators to the crimes involving this former client of Attorney X.

QUESTION

Do the Rules of Professional Conduct require disqualification of all attorneys in the County Attorney's Office due to the established principles of “infectious" or “vicarious” disqualification?

ETHICAL RULES INVOLVED

ER 1.9. Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation. * * *

ER 1.10. Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by ER 1.6 and 1.9(b) that is material to the matter. * * *

ER 1.11. Successive Government and Private Employment

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. 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 screened from any participation in the matter and is apportioned no fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used tothe material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: (1) 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 the matter; or (2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially. * * *

OPINION

The question of what circumstances required vicarious disqualification of attorneys was a persistent problem addressed by this Committee and the Bar nationally under the formerly-recognized Code of Professional Responsibility. The question arose repeatedly in situations involving public employment and was usually addressed by deciding whether the employment in a governmental office was analogous to employment in the same firm, requiring disqualification under DR 5-105(D), or whether disqualification was required by Canon 9's general directive to “avoid even the appearance of professional impropriety" or Canon 4's requirement of preserving “the confidences and secrets of a client.” See, e.g., our Opinions Nos. 72-10, 73-1, 74-4, 76-29, 81-29, 83-15 and 83-18. Fortunately, the newly adopted Rules of Professional Conduct address this issue in detail and permit a clear determination of the answer to the question posed in this inquiry.

Initially, it must be recognized that Attorney X cannot participate in any way in the prosecution of the co-conspirators of his former client. For purposes of ER 1.9(a), the State would be viewed as “another person” with “materially adverse” interests and it is probable that prosecution of co-conspirators to the same crimes would be considered a "substantially related matter.” This view is supported by the Comment to ER 1.9, which does not automatically prohibit representation in the same matter after a move from defense to prosecution functions but prohibits such action where the attorney was involved to a degree where it would be viewed as a “changing of sides". Although ER 1.9(a) might permit Attorney X to prosecute where his former client consented, such consent is unlikely and prosecution might still be barred by the principles set forth in ER 1.11 and ER 1.7.

The general rule of imputed disqualification under ER 1.10 does not apply to the circumstances of this case. Unlike the Disciplinary Rules under the Code of Professional Responsibility, the new Ethical Rules make clear that a governmental office is not considered a firm such that other attorneys in the County Attorney's office would be disqualified under ER 1.10(a) or (b). The Comment to ER 1.10 explicitly notes that the broad disqualification of that Rule would unduly burden the government if it were applied to government lawyers. The Comment directs that former or current government lawyers are governed by ER 1.11.

Ethical Rule 1.11 addresses the move from government to private practice and vice versa. Under ER 1.11(a), a firm may represent a private client in a matter previously handled by another attorney in the firm as a government attorney if the former government attorney is screened, receives no part of the fee, and written notice is given to the governmental agency. A lawyer who has moved from private practice to public legal employment is generally prohibited from participation in any matter in which he was involved in private practice under ER 1.11(c). However, the Comment to ER 1.11 states that other lawyers in the agency are not similarly disqualified.

The new Ethical Rules do not specifically address a move from one branch of a single governmental unit to another. The Comment to ER 1.11 does state that a move from an agency of one government to that of another, such as City to Federal, should be treated as a move from private to public employment. Application of this approach, or.ER 1.11(c), to the instant case requires only that Attorney X refrain from participation in the prosecution of co-conspirators but does not disqualify other prosecutors in the office. Even a very conservative approach, or application of ER 1.11(a)'s protections to the Public Defender's Office, would permit prosecution by other attorneys in the County Attorney's Office if Attorney X were screened and the Public Defender's Office were notified. However, it is the opinion of this Committee that ER 1.11(c) applies to this inquiry because of its Comment's direction that that paragraph applies to moves between two governments.

The new Ethical Rules and this result reflect the values expressed in the previous opinions of this Committee issued under the Code of Professional Responsibility. We declined to declare vicarious disqualification of all attorneys in an office due to an attorney's move from the County Attorney's to the Public Defender's Office in our Opinions Nos. 73-1, 74-4, and 83-18. In our Opinion No. 81-29, a majority of the Committee held that other prosecutors in a City Attorney's Office were not disqualified from prosecution of a former client of a prosecutor who had formerly acted as defense attorney for the client in another criminal proceeding.

Significantly, Opinion No. 81-29 found it necessary to distinguish the Arizona Supreme Court's opinion in State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972). The Latigue court held that all attorneys in the County Attorney's Office were barred from participation in the prosecution of a defendant who had been represented by one of the attorneys in his former job as a public defender. The opinion was based largely on the unique role of the prosecutor and on the requirement for avoidance of even the appearance of impropriety. Despite the apparent similarity between the facts of Latigue and of this inquiry, it is clear that Latigue no longer applies. Opinion No. 81-29 pointed out the distinguishing circumstances of the Latigue case. In addition that case was decided before the issuance of ABA Opinion 342, which held that a prosecutor's office could not practically be disqualified under DR 5-105(D) without unreasonably impairing the government's ability to function. Finally, although the new Rules of Professional Conduct and associated Comments address the issue of disqualification at length, no rule or comment suggests that attorneys in a prosecutor's office should be uniquely treated as suggested by Latigue. Instead, the County Attorney's Office should be treated-like any other government agency under the new Rules.

In summary, it is the opinion of this Committee that only Attorney X is disqualified from participation in the prosecution of the co-conspirators.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.

© State Bar of Arizona 1985