Ethics Committee Informal Opinion #1988/9-11
Conflict of Interest: Representation of Police Prosecutor
March 9, 1989
A Lawyer and the law firm having a police-prosecutor as a divorce client, will in most cases be prohibited from representing other clients in any criminal actions being prosecuted by the prosecuter-divorce client.
The Rules of Professional Conduct do not apply to prosecutors who are not members of the Bar (Rule 8.4; NH comments to Rule 3.8.)
A lawyer is prohibited from representing a client if the representation will be directly adverse to another client, unless the lawyer reasonably believes the representation will not adversely affect the relationship and each client consents after consultation and knowledge of the results (Rule 1.7; Rule 1.7(a)).
A lawyer is prohibited form representing a client if the attorney’s representation may be materially limited by the attorney’s responsibilities to another client, unless the lawyer reasonably believes the representation will not adversely affect either attorney-client relationship and each client consents after consultation and knowledge of the results. (Rule 1.7(b)).
A lawyer may not act as an advocate against a person he or she represents in some other matter, even if it is wholly unrelated. (Rule 1.7).
Other members of an attorney’s firm should not represent any client the attorney could not represent. (Rule 1.10).
Even after legal representation is terminated, a lawyer is under a continuing obligation not to reveal or use client confidences and other information derived from the representation, subject to specified exceptions (Rule 1.6; Rule 1.9).
The inquiring attorney represents in a pending divorce a police officer who acts as the local, non-attorney prosecutor. To avoid possible conflicts of interest, the attorney and his firm have declined to be involved in any cases in which the police officer client is or was involved, whether as prosecutor or as witness. Moreover, attorney has advised all clients of his representation of the officer. No clients objected upon this disclosure.
The police department has assigned another officer to prosecute any cases involving attorney or his firm. Although the divorce is expected to be resolved soon, it remains pending. The police department now wants attorney’s client to resume prosecutions involving attorney’s firm. Attorney disagrees, believing that at present there would be an impropriety or the appearance of an impropriety if his officer client were to prosecute cases involving attorney’s other clients.