Can a lawyer prosecute a defendant for the city while also opposing that same defendant in a civil case?

Plain-English summary

The inquiry concerned conflict-of-interest issues where the lawyer was prosecuting a defendant in one case while also opposing the same defendant in a civil case. The committee concluded that representing private parties while at the same time representing the city against such parties does not comply with RPC 1.11.

The committee added that to the degree the lawyer's independent judgment would be affected, for either representing the city or the private parties, the conduct would not comply with RPC 1.7(b). It also stated that if a conflict of interest is likely to occur under RPC 1.7(b), client consent may not necessarily cure the conflict, because the conflict may not be waivable.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's cited rules correspond to ABA Model Rules 1.7 (conflicts of interest) and 1.11 (special conflicts for government officers and employees).

Common questions

Q: Can the lawyer prosecute and also civilly oppose the same defendant?

A: The committee concluded that representing private parties while representing the city against those same parties does not comply with RPC 1.11.

Q: What if the lawyer's judgment for one side is affected?

A: The committee said that to the degree the lawyer's independent judgment would be affected, for either the city or the private parties, the conduct would not comply with RPC 1.7(b).

Q: Can the parties consent to waive the conflict?

A: The committee said that if a conflict is likely under RPC 1.7(b), client consent may not necessarily cure it, because the conflict may not be waivable.

Background and rules framework

The opinion applied RPC 1.11 (special conflicts of interest for government officers and employees, corresponding to ABA Model Rule 1.11) and RPC 1.7(b) (the material-limitation branch of the conflicts rule, corresponding to ABA Model Rule 1.7) to a lawyer who both prosecutes for the city and opposes the same party civilly. The committee treated the dual role as failing RPC 1.11 and, where independent judgment is affected, RPC 1.7(b), and flagged that the resulting conflict may be non-consentable.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7(b)
• ABA Model Rule 1.11 (special conflicts for government officers and employees); Washington RPC 1.11

See also

• WA Ethics Op. 1746: Switching Prosecution and Defense
• WA Ethics Op. 1739: Friendship Limits HOA Representation
• WA Ethics Op. 1738: No-Contact Rule in a Non-Legal Job

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=823

Original opinion text

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

Advisory Opinion: 1755
Year Issued: 1997
RPC(s): RPC 1.7(b); 1.11
Subject: Conflict of interest; lawyer prosecuting defendant and opposing same defendant in civil case

[The inquiry concerned] conflict of interest issues in a situation where you are prosecuting a defendant in a case while also opposing the same defendant in a civil case.

1. It is the committee's opinion that your representation of private parties while at the same time representing the city against such parties does not comply with the RPC 1.11.

2. To the degree that your independent judgment would be affected, for either representing the city or the private parties, your conduct would not comply with RPC 1.7(b).

3. If the conflict of interest is likely to occur under 1.7(b), client consent may not necessarily cure the conflict since the conflict may not be waivable.