Can a prosecutor who was formerly a public defender prosecute a former client, and is the whole office disqualified?

Plain-English summary

The prosecutor's office had employed former public defense lawyers who found themselves making charging decisions and prosecuting their former clients. The committee was asked whether a conflict of interest prohibits a prosecuting attorney from prosecuting a former client, and, if so, whether the prosecutor may participate in any aspect of the case or whether the entire office is disqualified.

The committee concluded that a lawyer is prohibited from prosecuting a former client if the two matters are substantially related or if confidences were revealed during the prior representation. If a lawyer is disqualified by such a conflict, another lawyer in the office may be reassigned so long as the disqualified lawyer is totally separated from all aspects of the case and relinquishes all control, involvement, and authority over it. The committee stated the entire prosecuting attorney's office is disqualified when the death penalty is being sought, when the prosecuting attorney personally represented the defendant in the same or a substantially related proceeding, or when other facts require disqualification under the RPCs.

The committee added that a conflict might be waived under RPC 1.9(a) and 1.8(b) if the accused gives written consent following full disclosure and RPC 1.6 is complied with. It declined to opine on the legal questions of whether an accused may consent without independent counsel or whether other constitutional rights may be adversely affected, noting it does not express opinions on questions of law.

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 Treat this page as historical context, not current guidance.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 1.6 (confidentiality), 1.8 (specific conflicts), 1.9 (duties to former clients), 1.10 (imputation of conflicts), and 1.11 (former and current government officers and employees).

Common questions

Q: Can a former public defender prosecute a person they used to represent?

A: The committee concluded a lawyer is prohibited from prosecuting a former client if the two matters are substantially related or if confidences were revealed during the prior representation.

Q: If the individual prosecutor is conflicted, is the whole office out?

A: Not necessarily. The committee said another lawyer in the office may be reassigned if the disqualified lawyer is totally separated from the case and relinquishes all control over it.

Q: When is the entire prosecuting office disqualified?

A: The committee said the whole office is disqualified when the death penalty is sought, when the prosecutor personally represented the defendant in the same or a substantially related proceeding, or when other facts require disqualification under the RPCs.

Q: Can the former client waive the conflict?

A: The committee said a conflict might be waived under RPC 1.9(a) and 1.8(b) with the accused's written consent following full disclosure and compliance with RPC 1.6, but it declined to opine on the related legal and constitutional questions.

Background and rules framework

The opinion applied RPC 1.9 (duties to former clients), RPC 1.10 (imputed disqualification), and RPC 1.11 (successive government and private employment), together with RPC 1.6 (confidentiality) and RPC 1.8(b) (use of client information), corresponding to ABA Model Rules 1.9, 1.10, 1.11, 1.6, and 1.8. The committee turned the analysis on whether the prior defense matter and the prosecution were substantially related or whether confidences were revealed, and tied office-wide disqualification to specific circumstances including a capital case and the prosecutor's personal prior representation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6
• ABA Model Rule 1.8 (conflict of interest: specific rules); Washington RPC 1.8(b)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9
• ABA Model Rule 1.10 (imputation of conflicts); Washington RPC 1.10
• ABA Model Rule 1.11 (special conflicts for former and current government officers and employees); Washington RPC 1.11

See also

• WA Ethics Op. 1755: Prosecuting and Suing the Same Person

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=837

Original opinion text

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

Advisory Opinion: 1773
Year Issued: 1997
RPC(s): RPC 1.6; 1.8(b); 1.9; 1.10; 1.11
Subject: Conflict of interest; imputed disqualification; former defense lawyer prosecuting former client

Facts Presented; The prosecutor's office has employed former public defense lawyers who find themselves making charging decisions and prosecuting former clients.

Questions Presented: (1) Does a conflict of interest prohibit a prosecuting attorney from prosecuting a former client for criminal conduct; and, (2) If a conflict of interest does exist, may the prosecutor participate in any aspect of the criminal case against the former client; and/or is the entire prosecuting attorney's office disqualified from prosecuting the former client?

Applicable Rules: RPC 1.6, 1.8(b). 1.9, 1.10, 1.11

RPC Committee Opinion: A lawyer is prohibited from prosecuting a former client if the two matters are substantially related or if confidences were revealed during the prior representation. If a lawyer is disqualified due to a conflict, then another lawyer in the office may be reassigned so long as the disqualified lawyer is totally separated from all aspects of the case and relinquishes all control, involvement and authority over the case. The entire prosecuting attorney's office is disqualified when the death penalty is being sought, when the prosecuting attorney personally represented the defendant in the same or a substantially related proceeding or when other facts require disqualification under the RPCs. A conflict of interest might be waived under RPC 1.9(a) and 1.8(b) if the accused gives written consent following full disclosure and RPC 1.6 is complied with.

The Committee does not express an opinion on the question of law regarding whether an accused may consent without advice of independent counsel or whether other constitutional rights may be adversely affected in the process of consent and disclosure. The inquiring lawyer should be advised not to violate or permit violation of RPC 1.6, 1.9 and 1.11, and to exercise caution by assigning cases to a prosecutor free of risk of a potential conflict of interest involving a former client. The Committee also refers the inquirer to RPC 1.10. The Committee does not express an opinion on legal questions.