If a prosecutor convicts a drunk driver, can the prosecutor's law partner sue that driver in a personal injury case for the passenger who was a witness in the criminal case?

Plain-English summary

Attorney A represented Client C in a personal injury claim from a one-car accident in which C was a passenger and D was the driver. C had told A that D had been drinking and was cited for OUI. D's insurer acknowledged liability, but the case stayed open on damages. Meanwhile, D was tried and convicted of OUI, with the prosecution handled by A's partner B, an assistant district attorney; C was one of three witnesses for the State, and the evidence showed D's blood alcohol level was .17. The question was whether A was barred from representing C in the civil case because of his partner's prosecution of D.

The Commission found at least two rules implicated and saw no alternative but to disqualify A. Rule 3.4(h) bars a lawyer from accepting private employment in a matter in which he held substantial and relevant responsibility while a public official or employee. As the prosecutor, B held the relevant responsibility for the case against D and became privy to all aspects of the State's case; the Commission found the "matter" for which B was responsible was virtually identical to the liability issues in C's civil case (proving D's intoxication and resulting negligence). Because B would be precluded from the same matter, his partner A was likewise disqualified under Rule 3.4(k).

The Commission also pointed to Rule 3.7(i)(4), which bars a government lawyer from conducting a case against any person relative to a matter in which he represents or has represented the complaining witness. On these facts, B could not and should not have prosecuted D for OUI because his partner represented one of the complaining witnesses; the rule exists to prevent a government attorney from gaining advantage for a private client through governmental action and to remove the risk of prosecution motivated by private interests. Because the prohibited conduct had already occurred, the only remaining remedy was to disqualify the prosecutor and his firm from representing C in the civil case. The Commission concluded that under either Rule 3.4(h) or 3.7(i)(4), A should resign from representing C, and added that Rule 53A of the Rules of Criminal Procedure compelled the same result.

Currency note

This opinion was issued in 1981, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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: Can a lawyer sue a defendant whom the lawyer's partner prosecuted for the same underlying events?

A: The opinion concluded no. Rule 3.4(h) bars private employment in a matter where a lawyer held official responsibility, and Rule 3.4(k) imputes that bar to the prosecutor's partner.

Q: Why was the OUI prosecution itself a problem?

A: The opinion concluded that under Rule 3.7(i)(4), the prosecutor should not have brought the case because his partner represented one of the complaining witnesses, creating a risk of governmental action serving private interests.

Q: What was the remedy once the prosecution had already happened?

A: The opinion concluded that, because the prohibited conduct had already occurred, the only appropriate remedy was to disqualify the prosecutor and his firm from the civil case, so Attorney A had to resign.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(h) (no private employment in a matter where the lawyer held substantial and relevant public responsibility), Rule 3.7(i)(4) (a government lawyer's bar on cases against a person where he has represented the complaining witness), and the imputation rule 3.4(k), reinforced by Rule 53A of the Maine Rules of Criminal Procedure. These correspond to Model Rule 1.11 (successive government and private employment) and Model Rule 1.7 (conflicts of interest). The analysis turns on the overlap between the criminal "matter" and the civil liability issues, and on the partner relationship between the prosecutor and civil counsel.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 (government lawyers); Model Rule 1.7 (conflicts)
• Maine Bar Rules 3.4(h), 3.7(i)(4), 3.4(k)

Court rules:

• Maine Rule of Criminal Procedure 53A

See also

• Maine Ethics Op. 39: A Part-Time Assistant D.A.'s Firm and Criminal Defense
• Maine Ethics Op. 36: Prosecuting a Defendant Whose Lawyer Is the Prosecutor's Spouse's Partner
• Maine Ethics Op. 29: Commissioner-Lawyer vs. District Attorney

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89526

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: August 25, 1981

Facts

Attorney A represents Client C in a personal injury claim arising out of a one-car accident in which C was the passenger and D was the driver. During the initial interview, C disclosed that D had been drinking at the time of the accident and had been cited for OUI by the investigating officer. D's insurance carrier promptly acknowledged liability to C, but the case remains open pending resolution of damages.

Thereafter, D was tried and convicted for OUI in the District Court; the prosecution was handled by A's partner, B, who is an Assistant District Attorney. C was among three witnesses called in the presentation of the State's case, and the evidence included a showing that D's blood alcohol level was .17.

Issue Presented

Whether A shall be barred from representing C against D in the personal injury matter because of his partner's having prosecuted D.

Discussion

Under the circumstances here described, there are at least two rules which are being or have been violated, and we see no alternative but to disqualify Attorney A from representing C.

Rule 3.4(h) provides that:

A lawyer shall not accept private employment in a matter in which he held substantial and relevant responsibility while he was a public official or employee.

It is clear that Attorney B, as a public prosecutor, held the relevant responsibility for handling the case against D, and in the course of discharging that responsibility became privy to all aspects of the State's case against D. It thus seems to us that the "matter" for which B had responsibility was virtually identical to the liability issues in C's case against D: proof that D was intoxicated at the time of the accident, and thus negligently caused damage to C. If B would be precluded from participating in this same "matter," his partner A is similarly disqualified. Rule 3.4(k).

Further, Rule 3.7(i)(4) provides that:

A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which he represents or has represented the complaining witness.

Application of this rule to the foregoing facts makes it clear that Attorney B could not and should not have conducted the prosecution for OUI against D because his partner represented one of the complaining witnesses. The purpose of the rule is clear: to prevent a government attorney from gaining advantage for a private client through governmental action, and to remove the risk of overzealous governmental prosecution being motivated by private interests. We are in no position to know the extent to which C's private interests may or may not have affected the OUI prosecution against D. Since the prohibited conduct has already occurred, the only appropriate remedial action remaining is to disqualify the prosecutor and his firm from representing C in the civil case.

Thus, under either Rule 3.4(h) or 3.7(i)(4), Attorney A should resign from his representation of C. The Commission also believes the foregoing result is compelled by Rule 53A of the Rules of Criminal Procedure.