Can a criminal defense firm hire a nonlawyer assistant who previously worked at the prosecutor's office?

Plain-English summary

The inquiry concerned a lawyer who practices criminal law in the county where a legal assistant previously worked for the Prosecuting Attorney's office, and who proposed to hire that assistant. The committee concluded that, in general, the firm is not disqualified from accepting cases involving the County Prosecutor's office.

The committee directed the inquiring lawyer to RPC 1.10(b)(3) for the situation in which information acquired by the assistant were deemed a "material confidence and secret." It added that the committee does not express an opinion about statutory law, but called the lawyer's attention to RCW 42.23.

Currency note

This opinion was issued in 1999, 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 Treat this page as historical context, not current guidance.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 imputed-disqualification provisions were renumbered and revised in the 2006 revisions, so verify the current rule and its screening provisions before relying on them.

Common questions

Q: Is a criminal defense firm disqualified from cases against the prosecutor's office if it hires the prosecutor's former nonlawyer assistant?

A: The committee concluded that, in general, the firm is not disqualified from accepting cases involving the County Prosecutor's office.

Q: When does the screening rule come into play?

A: The committee directed the lawyer to RPC 1.10(b)(3) if information the assistant acquired were deemed a "material confidence and secret."

Q: Did the committee address the conflict-of-interest statute?

A: No. It said it does not express an opinion about statutory law, but called the lawyer's attention to RCW 42.23.

Background and rules framework

The opinion applied Washington RPC 1.10(b)(3) (imputed disqualification and the treatment of a nonlawyer who possesses a material confidence and secret), which corresponds to the imputation framework of ABA Model Rule 1.10. The committee made non-disqualification the general rule while pointing to RPC 1.10(b)(3) for cases where the assistant holds a material confidence and secret, and treated the statutory conflict question under RCW 42.23 as outside the scope of an ethics opinion.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.10 (imputation of conflicts of interest); Washington RPC 1.10(b)(3)

Statutes:

• RCW 42.23 (Washington Code of Ethics for Municipal Officers; identified by the committee, which expressed no opinion on statutory law)

See also

• WSBA Ethics Op. 1064: Former Agency Lawyer Screening
• WSBA Ethics Op. 1050: Former Government Lawyer Conflict

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1047

Original opinion text

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

Advisory Opinion: 1854
Year Issued: 1999
RPC(s): RCW 1.10(b)(3); RCW 42.23
Subject: Criminal defense lawyer employing nonlawyer assistant formerly employed by Prosecuting Attorney’s office

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1854 concerning the hiring of a legal assistant formerly employed by the Prosecuting Attorney’s office. [The lawyer practices criminal law in the county where the legal assistant previously worked.]

The Committee has reviewed your inquiry and determined the following:

In general, the firm is not disqualified from accepting cases involving the County Prosecutor’s Office. The inquiring lawyer is directed to RPC 1.10(b)(3) if information acquired by the assistant were deemed a "material confidence and secret." The committee does not express opinion about statutory law; it calls your attention to RCW 42.23.