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Conflicts Involving Successive Government and Private Employment

Adopted: October 21, 2004

Opinion rules that if a current representation requires cross-examination of a former client using confidential information gained in the prior representation, then a lawyer has a disqualifying conflict of interest.

Inquiry #1:

Assistant District Attorney (ADA) was formerly in private practice, concentrating in criminal defense matters. ADA's current duties include prosecuting habitual felons. To be charged as a habitual felon, a defendant must have three prior felonies for which the dates of conviction and the dates of occurrence do not overlap.

A habitual felon trial involves two phases:

1. The underlying felony trial in which the jury is not informed of the second trial for determination of habitual felon status, and

2. The habitual felon trial at which the same jury hears the habitual felon charge if the defendant was convicted of the underlying felony.

During the second phase of the habitual felon trial, the prosecutor usually introduces certified copies of the defendant's three prior felony convictions, as well as live testimony identifying the defendant as the person named in the previously certified judgments. At the same time, the defendant's lawyer will raise arguments for disallowing evidence of the prior convictions or attacking the sufficiency of the habitual felon charge.

ADA is assigned to prosecute the defendant as a habitual felon. ADA previously represented the defendant on one of the prior felonies that will be used to support habitual felon status. If the defendant is convicted in phase one, then ADA must introduce evidence regarding the prior convictions in the subsequent phase. Prosecution of either phase of the habitual felon trial may require ADA to cross-examine the defendant, his former client.

May ADA prosecute the underlying felony phase and/or the habitual felon phase of the criminal action against defendant?

Opinion #1:

ADA may not prosecute either the underlying felony phase or the habitual felon phase against defendant if he must cross-examine his former client using confidential information gained in the prior professional relationship. In prosecuting either phase of the trial, it is possible that ADA will need to cross-examine his former client. Conflicts involving cross-examination of former clients arise most frequently in two situations: 1) a lawyer misuses confidential information previously obtained in the professional relationship, or 2) a lawyer fails to cross-examine the witness effectively for fear of misusing confidential information. If ADA needs to use confidential information to effectively cross-examine his former client about the prior conviction, then ADA may not prosecute the case.

One exception, under Rule 1.9(c) of the Rules of Professional Conduct, permits a lawyer to reveal confidential information of a former client "when the information has become generally known." A criminal conviction may be considered generally known if, in addition to public record information, the fact of the conviction is known to all relevant parties. See Rule 1.9, cmt. [8]. Thus, if ADA need only to present a certified copy of the prior conviction as evidence in phase two and cross-examination of the defendant is unnecessary, then this exception will apply and ADA may continue the representation. If, on the other hand, ADA must cross-examine his former client about the conviction using confidential information, then ADA is disqualified. As stated in 98 Ethics Decision 9 (unpublished), it is rare that cross-examination about a prior criminal record can be limited to the fact of the convictions alone.

Given the high probability that the lawyer will delve into facts relative to the conviction that are not public record and are, therefore, subject to the confidentiality rule or, in foregoing such questions, fail adequately to represent the lawyer's current client, it must be concluded that the lawyer is prohibited from representing the current client due to a conflict of interest.

98 Ethics Decision 9.

If ADA concludes that effective representation of the State requires inquiry into one or more prior convictions for which he provided representation to the defendant, then ADA should not undertake prosecution of this matter. Instead, another member of the district attorney's staff should be assigned to prosecute the case and ADA should be screened from participation in the matter. See Rule 1.11, cmt. [2].

Inquiry #2:

Attorney was formerly a prosecutor but left the district attorney's office to enter private practice as a criminal defense attorney. Attorney has been retained to represent Client on felony charges. Client has also been indicted as a habitual felon. Attorney discovers that he was the prosecutor for one of the felony convictions being used to establish that Client is a habitual felon. In a habitual felon case, the defense attorney must scrutinize the charges, ascertain if there are irregularities in the prior convictions, and attack the propriety of using the convictions that form the basis of the habitual felon charge if there is a legal or factual basis for doing so. In this case, however, Attorney does not believe there is any basis for disallowing the convictions.

May Attorney represent Client in any phase of the habitual felon case?

Opinion #2:

No. Although Attorney does not believe there is a basis for disallowing the convictions, his judgment may be impaired because his evaluation of the prior conviction is not impartial. It is not possible for a lawyer to scrutinize his own work while exercising independent professional judgment on behalf of a criminal defendant. Rule 1.7(a)(2). Therefore, Attorney has a conflict of interest and is disqualified from representing Client during the second phase of the habitual felon trial. Because the same jury is empaneled for both phases of the trial, the better practice would be to withdraw from the entire matter.

Notwithstanding Attorney's disqualification, Rule 1.11(b) permits another lawyer in Attorney's firm to continue representation of Client if Attorney is screened in a timely fashion and appropriate written notice is given to the district attorney's office. See also Rule 1.0(l).

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