State Bar of Arizona Ethics Opinions

00-09: Conflicts of Interest; Prosecutors
11/2000

This Opinion discusses the case-by-case analysis that is necessary to determine whether there is a conflict of interest when a prosecutor also works as a police officer. [ERs 1.7, 3.7]

FACTS[1]

 

The inquiring attorney is a municipal prosecutor who is interested in becoming a certified peace officer.  He anticipates working part-time as a reserve officer for another municipality or the county Sheriff's Department.  He may or may not be paid as a reserve officer.  The inquiring attorney would not work as an officer in the municipality where he is employed as a prosecutor.  However, law enforcement officers occasionally serve on multi-agency task forces that could include officers from his municipality.  Additionally, officers in one municipality occasionally must assist officers from another municipality because of crisis events.  Finally, as a certified peace officer and reserve officer, the prosecutor may be required to take law enforcement action even when he is not working as a police officer.

 

Before embarking on the training to certification, the inquiring prosecutor asks a variety of general questions that we limit to the most pertinent and likely to arise.

 

QUESTIONS PRESENTED

 

1.         Does part-time work as a reserve law enforcement officer pose potential or actual ethical conflicts with full-time work as a municipal prosecutor?

 

2.         Can the attorney avoid or minimize ethical conflicts by avoiding law enforcement responsibilities within the municipality where he is employed as a prosecutor?

 

3.         Can the attorney avoid or minimize ethical conflicts by working as a police officer on a volunteer basis?

 

4.         Are there any special considerations that should be taken regarding attorney work product, privileged communications, access to ACIC, NCIC, or other law enforcement sources?

 

RELEVANT ETHICAL RULES

 

ER 1.7.            Conflict of Interest:  General Rule

           

            (a)            A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

 

(1)            the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

 

                        (2)            each client consents after consultation.

 

            (b)            A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

 

(1)            the lawyer reasonably believes the representation will not be adversely affected; and

 

(2)            the client consents after consultation.  When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

 

ER 3.7.            Lawyer as Witness

 

            (a)            A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

 

                        (1)            the testimony relates to an uncontested issue;

 

(2)            the testimony relates to the nature and value of legal services rendered in the case; or

 

(3)            disqualification of the lawyer would work substantial hardship on the client.

 

            (b)            A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by ER 1.7 or ER 1.9.

 

ER 3.8.            Special Responsibilities of a Prosecutor

 

The prosecutor in a criminal case shall:

 

            (a)            refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

 

            (b)            make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

 

            (c)            not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

 

            (d)            make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

 

            (e)            exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under ER 3.6.

 

RELEVANT ARIZONA ETHICS OPINION

 

Ariz. Op. 93-07.

 

OTHER ETHICS AUTHORITIES

 

Gomez v. Latigue, 149 Ariz. 223, 225, 717 P.2d 902, 904 (1986).

ABA Formal Op. 336 (1974).

 

OPINION

 

A prosecutor has a special responsibility as a minister of justice and not simply that of an advocate.  ER 3.8, cmt.; Holmberg v. De Leon, 189 Ariz. 109, 111, 938 P.2d 1110, 1112 (1997).  The court relies on the prosecutor to provide an objective appraisal of both the charges and the penalty.  In re Owens, 182 Ariz. 121, 126, 893 P.2d 1284, 1289, n.6 (1995).  Most generally, the prosecutor "speaks not solely for the victim, or the police, or those who support them, but for all the People."  State ex rel. Romley v. Superior Court, 181 Ariz. 378, 382, 891 P.2d 246, 250 (App. 1995) (internal citations omitted).  Although the prosecutor's "special responsibility" has constitutional dimensions, it is firmly and independently rooted in our ethics code.  See ABA Formal Op. 336 (1974).

 

A prosecutor who also serves as a police officer faces two ethical issues:  an actual conflict of interest if the prosecutor-officer may be a witness and the appearance of impropriety even if an actual conflict is not present.  The first issue is the most simple to identify and resolve.

 

It is beyond debate that a prosecutor who may be a witness in a case as a result of police officer activities cannot prosecute the case.  ER 3.7(a).  Such testimony would improperly combine the roles of advocate and witness to prejudice of the defendant.  Id., cmt.  More problematic, however, is whether a prosecutor-officer may testify in a case prosecuted by another attorney in his office.

 

Does a prosecutor-officer create an appearance of impropriety?  Although the Committee has not found any authorities on this precise question, discussions in and out of Arizona show that the issue is not insignificant.

 

First, although the "appearance of impropriety" prohibition in the prior ethical code is no longer explicitly mentioned in the ER's, our supreme court has held that it remains part of the conflict of interest analysis.  Gomez v. Latigue, 149 Ariz. 223, 225, 717 P.2d 902, 904 (1986).  If the appearance of impropriety is severe, the entire prosecutor's office could be disqualified from a case in which one of its own attorneys testifies as a police officer.  Disqualification depends on a number of factors, including the nature of the conflict, the type of crime charged, the size of the prosecutor's office, and the suitability of screening mechanisms.  E.g., compare, Turbin v. Superior Court, 165 Ariz. 195, 797 P.2d 734 (App. 1990) (disqualifying small prosecutor's office in attempted murder case where conflicted attorney had extensive involvement with defendant) with State ex rel. Romley v. Superior Court, 184 Ariz. 223, 908 P.2d 37 (App. 1995) (associate who joined 200+ prosecutor office did not disqualify entire office from a multi-defendant case where strict screening measures were implemented at start).  Disqualification of the entire prosecutor's office turns on a case-by-case analysis that requires more specific facts than presented here.  State ex rel. Romley, supra.

 

Arizona law has an even broader restriction for sheriffs, constables, and deputies.  A.R.S. § 11-403(A) prohibits those law enforcement officers from "practicing law or forming a partnership with an attorney-at-law."  Additionally, county attorneys and many municipalities prohibit or restrict their deputy attorneys from outside legal work.  See, e.g., A.R.S. § 11-403(B) and Tucson Administrative Directive 2.02-6 ¶ III (1994).

 

A prosecutor who works as a police officer may encounter greater difficulty in objectively assessing the testimony from other police officers.  Such difficulty could interfere with the prosecutor's duty to limit prosecution to those matters for which there is probable cause.  ER 3.8(a).  It might even cloud the prosecutor's responsibility to ensure that the defendant's procedural rights are observed by the involved parties.  See ER 3.8(b-e).  However, the Committee does not presume unethical conduct or irresolvable conflicts except in the most egregious circumstances.  In fact, one could reasonably argue that experience as a police officer may enhance a prosecutor's awareness of proper police conduct and enable the prosecutor to make more nuanced judgments about potential conflicts.  The large numbers of criminal law attorneys who are former police officers indicates that the mere fact of law enforcement service does not blind an attorney to ethical conflicts about police officers.  Finally, it would be an unusual situation where the jurors or even a judge would necessarily know that the prosecutor is also a police officer.  This avoids the circumstance where a lawyer-advocate contaminates the advocacy by also appearing in another role.

 

Statutes, regulations, and decisional law that prohibit or place broad restrictions on the ability of their police officers to practice law may do so because of public policy concerns that do not have a precise counter-part in our ethical rules.  See Ariz. Op. 93-07 at 13.  For that reason, inter alia, the Committee does not find them to control the resolution of the ethical questions before us.  Of course, the inquiring prosecutor may be faced with restrictions that are independent of the ethical rules, such as the statutory prohibition involving deputy sheriffs, which limit his options to practice law and police work concurrently.

 

From these general observations, we address the more specific questions.

 

1.         Does part-time work as a reserve law enforcement officer pose potential or actual ethical conflicts with full-time work as a municipal prosecutor?

 

A prosecutor who also serves as a police officer may face actual conflicts of interest.  Each case must be analyzed on the individual merits.  There is no innate conflict created by working as both a prosecutor and a police officer.

 

2.       Can the attorney avoid or minimize ethical conflicts by avoiding law enforcement responsibilities within the municipality where he is employed?

 

The inquiring attorney proposes to work as a police officer outside the jurisdiction in which he practices law.  This simple precaution avoids the most likely conflict:  becoming a witness in a case prosecuted by himself or by another prosecutor in his office.  If it is not possible to avoid law enforcement duties in his own jurisdiction on a particular occasion, then the prosecutor and the attorneys in his office could be disqualified from prosecuting a case where the prosecutor-officer may be called as a witness.

 

3.         Can the attorney avoid or minimize ethical conflicts by working on a volunteer basis?

 

Whether the prosecutor-officer is paid for his services in law enforcement is irrelevant to the ethical issues.  Just as a reserve police officer has full authority and responsibility to enforce the law of a particular jurisdiction without regard to whether he is paid or unpaid, so too the ethical duties of an attorney do not vary depending on whether compensation is paid for law enforcement work.

 

4.         Are there any special considerations that should be taken regarding attorney work product, privileged communications, access to ACIC, NCIC, or other law enforcement sources?

 

The inquiring attorney does not provide sufficient detail to determine whether there are special precautions that a prosecutor-officer must observe about confidential or privileged information.  For instance, it is not clear whether a problem could arise because the prosecutor has information not available to police officers, or whether the inverse is more likely.  The Committee can only advise that the requirements of ERs 1.6 and 3.8 may be applicable to circumstances where the prosecutor-officer has information or access to law enforcement sources that would not be available to someone acting in one role only.



[1] 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 proceedings.  Ó State Bar of Arizona 2000