Can a former deputy prosecutor handle a criminal defense appeal in a case that was pending in his old office, if he never worked on it personally?

Plain-English summary

A former deputy prosecuting attorney wished to represent indigent criminally accused defendants in an appellate practice. Some of those defendants may have had cases pending in the prosecuting attorney's office during the period the lawyer was employed there, but the lawyer would not represent individuals on cases in which he had participated substantially as a prosecutor. The committee was asked whether the RPCs are violated when a former prosecutor begins appellate representation of a defendant in a case that was pending in his former office before he left, even though he had not participated in the case personally and substantially.

The committee concluded there is no violation of the RPCs under the facts presented as long as the lawyer complies with RPC 1.7(b). It stated that RPC 1.11(b) and 1.9(a) are not violated as long as the lawyer had not participated personally and substantially as a public officer in the matter. It added that under RPC 1.4(b), it may be necessary for the lawyer to advise the client of the previous employment with the prosecuting attorney's office.

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 Treat this page as historical context, not current guidance.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 1.4 (communication), 1.7 (conflicts of interest), 1.9 (duties to former clients), and 1.11 (former and current government officers and employees).

Common questions

Q: Can a former deputy prosecutor take a defense appeal in a case that was pending in his old office?

A: The committee concluded there is no RPC violation under the facts presented as long as the lawyer complies with RPC 1.7(b).

Q: Does the successive-government-employment rule bar the representation?

A: The committee said RPC 1.11(b) and 1.9(a) are not violated so long as the lawyer did not participate personally and substantially in the matter as a public officer.

Q: Does the lawyer have to tell the client about the prior prosecutor job?

A: The committee said that under RPC 1.4(b) it may be necessary for the lawyer to advise the client of the previous employment with the prosecuting attorney's office.

Background and rules framework

The opinion applied RPC 1.11(b) (a lawyer leaving government service), RPC 1.9(a) (duties to former clients), RPC 1.7(b) (conflicts arising from the lawyer's own interests or responsibilities), and RPC 1.4(b) (keeping a client reasonably informed), corresponding to ABA Model Rules 1.11, 1.9, 1.7, and 1.4. The committee turned the successive-employment analysis on whether the lawyer participated personally and substantially in the matter as a public officer, and treated the disclosure of prior employment as a communication question under RPC 1.4(b).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.4 (communication); Washington RPC 1.4(b)
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(b)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9(a)
• ABA Model Rule 1.11 (special conflicts for former and current government officers and employees); Washington RPC 1.11(b)

See also

• WA Ethics Op. 1773: Prosecuting a Former Client
• WA Ethics Op. 1755: Prosecuting and Suing the Same Person

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=842

Original opinion text

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

Advisory Opinion: 1778
Year Issued: 1997
RPC(s): RPC 1.4(b); 1.7(b); 1.9(a); 1.11(b)
Subject: Conflict of interest; former deputy prosecuting attorney representing defendant in appeal of case handled by prosecuting attorney's office during his employment

Facts Presented: A former deputy prosecuting attorney wishes to represent indigent criminally accused defendants in an appellate practice. The defendants may have had cases pending in the prosecuting attorney's office during the time period the lawyer was employed in that office. The lawyer would not represent individuals on cases in which he participated substantially as a prosecuting attorney.

Question Presented: Are the RPCs violated when a former prosecuting attorney commences appellate representation of a criminally accused in a case that was pending in the prosecuting attorney's office prior to the lawyer leaving that office, even though the lawyer had not participated in the case personally and substantially?

Applicable Rules: RPC 1.4(b), 1.7(b), 1.9(a), 1.11(b)

RPC Committee Opinion: There is no violation of the RPCs under the facts presented as long as the lawyer complies with RPC 1.7(b). Under the facts presented, RPC 1.11(b) and 1.9(a) are not violated as long as the lawyer had not participated personally and substantially as a public officer in the matter. The committee believes that under 1.4(b) it may be necessary for the lawyer to advise the client of the previous employment with the prosecuting attorney's office.