State Bar of Arizona Ethics Opinions

89-04: Confidentiality of Information; Conflict of Interest; Successive Government and Private Employment
5/1989

Where a lawyer formerly associated with County Attorney's office takes a public defender position, the lawyer may not represent a defendant in connection with a matter about which the lawyer obtained confidential information relating to the government's representation of the client; consent is also required in all cases in which the lawyer actually represented the government, by appearance or otherwise, and now seeks to represent an individual in the same or substantially related matter; the government's consent is likewise required where the lawyer participated personally or substantially in the prosecution of that matter.



FACTS

Attorney A was employed as a full-time prosecuting attorney in the County Attorney's Office of County X from December, 1984, until January, 1989. A few days after leaving the County Attorney's Office, A began work as an alternative public defender in County X. The alternative public defender position is designed to handle defense work that the Public Defender's Office is unable to take on for various reasons.

Because of the heavy criminal case load in County X, the presiding judge relieved the Public Defender's Office of all appointments made after January 1, 1989, and ordered a moratorium on such appointments until May 1, 1989. Many of the cases to be reassigned involve offenses, investigations, indictments, arraignments or convictions that occurred during A's tenure as a deputy county attorney. A has been assigned to represent the defendants in a number of these cases. Although A recognizes that he cannot represent those defendants whom he prosecuted while employed as a deputy county attorney, he inquires as to the ethical propriety of representing defendants whose cases were handled by others in the county attorney's office while he was employed there.

 

QUESTIONS

  1. May A properly represent defendants in cases about which A learned material information while employed as a deputy county attorney?
  2. May A properly represent defendants in cases about which A, while employed as a deputy county attorney, learned only that those defendants were being investigated or charged?
  3. May A properly represent defendants in proceedings to revoke probation, where A learned material information relating to the underlying convictions while employed as a deputy county attorney, but has learned nothing concerning the allegations contained in the petitions to revoke probation?

 

ETHICAL RULES INVOLVED

ER 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation,...

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ER 1.7.           Conflict of Interest: General Rule

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(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....

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; or

(b) use information relating to the representation to the disadvantage of the former client except as ER 1.6 would permit with respect to a client or when the information has become generally known.

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.

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OPINION

A seeks guidance concerning three groups of cases that are, and will continue to be, assigned to him. The common factual predicate is that each group involves the potential representation of criminal defendants who were investigated or charged by the County Attorney's Office during A's employment as a deputy county attorney. A assumes correctly that he is ethically prohibited from representing defendants whom he prosecuted personally. The three groups identified include only those cases prosecuted by deputy county attorneys other than A. Although we have not addressed this ethical problem under the Model Rules of Professional Conduct, we have visited it in a series of opinions issued over a span of more than twenty years. Before resolving the issue under the Rules, therefore, we briefly summarize our previous analysis in this area.

In our earliest opinions, we adopted the reasoning articulated in ABA Formal Opinion 134 (March 15, 1935). That opinion construed former Canon 36 to preclude a staff member in a state's attorney's office from representing, after retirement, any defendant whose case originated, was investigated or was passed upon (either by the lawyer involved or his associates) while he was a staff member. Although the language of Canon 36 referred only to matters "investigated or passed upon," the ABA Committee extended the prohibition to cases originating in the state's attorney's office during the lawyer's employment, on the theory that a public perception of impropriety existed in such cases.

We embraced this reasoning in our Opinion No. 190 (May 31, 1966), stating that an attorney could not represent a criminal defendant in connection with a charge lodged against that defendant while the attorney had been a deputy county attorney, despite the fact that the attorney had not taken part in any activity of the county attorney's office concerning the investigation or prosecution of the defendant. We reasoned that "the public would naturally assume that whatever confidential information is known by one member of the County Attorney's staff would probably become known to the others," and stated that, under normal circumstances, we would adhere to the rationale of ABA Formal Opinion 134. Id. at 2-3. However, due to the presence of unusual circumstances in the case submitted, this principle was not applied. Id. at 2-3.

In our Opinion No. 292 (November 6, 1969), we again applied the reasoning of ABA Opinion 134. In that case, a criminal defendant committed an offense before the inquiring attorney was employed as a deputy county attorney, and was charged, tried and convicted for that offense after the attorney left the County Attorney's Office. While employed in the County Attorney’s Office, the attorney had no information concerning the offense, and never discussed any aspect of the case with any representative of that office. Nonetheless, we held that the attorney should decline representation of the defendant in post-conviction proceedings, several members of the committee noting their dissents.

We departed from our previous reasoning in Opinion No. 73-1 (January 19, 1973). Although we cited and discussed an earlier opinion (No. 271) in which we had followed ABA Opinion 134, we relied on EC 9-3 and stated that:

“…it would be ethical for a lawyer transferring from the county attorney's office to the public defender's office, to handle in the public defender's office any matter in which he did not have 'substantial responsibility' in the county attorney’s office."

Id. at 2. Thus, the mere fact that a case had originated in, or was investigated or passed upon by, the County Attorney's Office during an attorney's employment there, was no longer enough to disqualify him or her from subsequently representing the defendant. Instead, the dispositive issue became whether or not the attorney had "substantial responsibility" for the matter while employed in the County Attorney's Office.

With one exception, our subsequent opinions have adhered to the "substantial responsibility" test. In Opinion No.           74-22 (August 14, 1974), for example, we held that a former deputy county attorney was not ethically precluded from, representing a defendant who was charged and indicted during his tenure at the County Attorney's Office, even though his partner in private practice, a former deputy county attorney in the same office, had been physically present in the grand jury room when evidence was presented against the defendant. Neither attorney had any responsibility with regard to the case against the defendant and, although one had been in a position to have heard or learned something of the case, he had paid no attention to it and had no independent recollection of any such information. Similarly, in Opinion No. 76-1 (February 11, 1976), we held that a part-time deputy county attorney could, after leaving that position, represent a defendant who was indicted about the time the attorney left based upon information and charges presented by the County Attorney's Office. The facts indicated that the attorney had no knowledge of the case while occupying his part-time position, was unaware of any facts supporting the indictment, and took no responsibility in the case. See also our Opinions Nos. 73-22, 74-4, 76-2 and 83-18.

Although our opinions in this area have generally focused on the "substantial responsibility" test, we have recognized that, under certain circumstances, a lawyer's involvement in a case may trigger another ethical concern that precludes later representation of another party, namely, the potential for use of confidential information relating to representation of the former client. In Opinion No. 74-16 (June 4, 1974), we addressed a case in which a deputy county attorney had rendered an opinion concerning the legality of an eavesdropping procedure that was contemplated during the investigation of certain individuals. Later, after entering private practice, the lawyer sought guidance with respect to his possible representation (or assistance in representation) of one of the individuals in that earlier case. We held that it would be ethically improper for that lawyer, or his law firm, to undertake such representation or assistance, regardless of whether rendering an opinion constituted "substantial responsibility." In reaching this conclusion, we relied on DR 9-101, which required that a lawyer avoid even the appearance of impropriety, and DR 4-101, which required a lawyer to preserve the confidences and secrets of his or her client. We stated that, although the former deputy county attorney may not have had substantial responsibility in the case, he was "involved in the case to a degree that would render it improper for him now to represent the defendant." Id. at 2.

We now turn to the Model Rules, which incorporate much of the same analysis articulated in our previous opinions. The Rules require a three-part analysis. First, we must examine the potential for use of confidential information relating to representation of the former client. The relevant rules are ER 1.6, ER 1.7(b) and ER 1.9(b). ER 1.9(b) and ER 1.6 prohibit a lawyer from using information relating to the representation of a former client to the disadvantage of that former client, unless the information has become generally known or the former client consents to the subsequent representation. ER 1.7(b) states the general conflict of interest rule that a lawyer shall not represent a client if that representation may be materially limited by the lawyer's responsibilities to another client, unless the lawyer reasonably believes that the representation will not be adversely affected and the client consents after consultation. Thus, where a deputy county attorney acquires confidential information relating to the representation of the county in a particular case, that attorney cannot later represent a defendant in the same matter without securing the county's consent.

The second and third steps of the analysis are found in ER 1.9(a) and ER 1.11. ER 1.9(a) provides that a lawyer who has “represented” a client in a matter shall not later 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," absent the former client's consent after consultation. ER 1.11(a) essentially codifies our prior "substantial responsibility" test by providing that, absent express law to the contrary, “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." This language also codifies our holding in Opinion No. 83-15 that a lawyer is not ethically prohibited from accepting the consent of a governmental body. ER 1.11; Opinion No. 83-15. Although it addresses only the move between government and private practice, as opposed to the move from one branch of the government to another, we recently concluded that ER 1.11 applies equally to the latter situation. See Opinion No. 85-6 (October 18, 1985).

The relationship between ER 1.9 and ER 1.11 deserves comment, because the two rules address related, but analytically distinct concerns. Under ER 1.9, any act of representation, regardless of the level of participation in the matter, precludes later representation of another client with adverse interests in the same or a substantially related matter, absent valid consent. Under ER 1.11, a lawyer's personal and substantial participation in a matter, regardless of whether that lawyer “represented” the client, precludes representation of another client in connection with the same matter. Implicit in the Rules, therefore, is a distinction between representation and participation. Although undefined, we read the term "represented," as it is used in ER 1.9, to encompass those actions by which an attorney substitutes himself for the client. Thus, any appearance on behalf of a client, whether in negotiations or in court, constitutes representation, as does the signing of papers filed with the court. This rule simply addresses the concern identified in Code Canon 9 that “[a] lawyer should avoid even the appearance of impropriety." Code Comparison to ER 1.9. Where a lawyer has represented a client, in the sense of substituting himself or herself for that client, subsequent representation of another client with materially adverse interests in the same or a substantially related matter will necessarily be perceived as "changing sides." Thus, the former client's consent is required. On the other hand, where a government lawyer has not represented the government in a matter, the likelihood that his or her later representation of a private party in connection with the same matter will be perceived as "changing sides" turns on the level of that lawyer's prior participation, namely, whether it can be considered personal and substantial.

Applying the preceding three-step analysis to the questions before us, we first conclude that A is ethically precluded from representing defendants in cases involving facts about which A learned material information while employed as a deputy county attorney, unless the county consents after consultation. Any material information that A learned while in the county attorney's office that related to particular defendants' cases is necessarily confidential within the meaning of ER 1.6. A must not use such information to the disadvantage of the county, and this has the potential to impair representation of a defendant materially. Even if A reasonably believes that the representation will not be impaired, consultation and consent is mandatory. ER 1.7(b).

On the other hand, A may represent defendants in those cases in which A's knowledge gained as a deputy county attorney was limited to learning that the defendants were being investigated or charged. Such facts are generally known, and there is no indication that A represented the county within the meaning of ER 1.9 or that his level of participation was personal and substantial. Under such circumstances, the assigned representation is within the ethical parameters of the Rules.

We do not have sufficient facts before us to enable us to determine whether A is precluded from representing defendants in cases involving proceedings to revoke probation, in which A learned material information relating to the underlying conviction but has learned nothing concerning allegations in the petitions to revoke probation. The facts do not indicate that A represented the county, within the meaning of ER 1.9, in prosecuting the defendants who now face possible revocation of probation. Moreover, although the facts do not indicate the level of A's participation in these cases, the proceedings relating to revocation of probation do not constitute the same matter as the underlying prosecution, and thus ER 1.11 would not bar such representation. The dispositive question, therefore, is whether A's representation of the defendant would involve confidentiality problems. If the proceedings to revoke probation involve allegations and proof wholly independent of the underlying conviction, we see no reason why such representation might force A to use confidential information to the disadvantage of the county or impair his representation of the defendant. We can conceive of circumstances, however, in which the probation revocation proceedings and the underlying conviction would not be wholly independent. In such circumstances, representation of the defendant would be improper under ER 1.9(b), ER 1.6 and ER 1.7(b), absent the county's consent after consultation. This is necessarily a highly factual issue that A must resolve on a case-by-case basis.

A number of ethical problems are inherent in situations where a lawyer formerly associated with the County Attorney's Office takes a public defender position. We therefore take this opportunity to sum up our approach to these problems under the Model Rules. We believe a three-part analysis is appropriate. First, absent the government's consent, a lawyer may not represent a defendant in connection with a matter about which the lawyer obtained confidential information relating to the representation of the government. Second, consent is also required in all cases in which the lawyer actually represented the government, in the sense of substituting into the government's place (by appearance or otherwise), and now seeks to represent an individual in the same or a substantially related matter. Third, consent is required in cases where, although the lawyer did not represent the government in the matter, he or she participated personally and substantially in that matter.

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 rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1989



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