Opinion #7. District Attorney Conflict of Interest

Issued by the Professional Ethics Commission

Date Issued: April 2, 1980

Question

Is it permissible under the Maine Bar Rules for a District Attorney to serve as counsel for the defendants, the County Sheriff and a County Commissioner, in a civil action brought by a prisoner in the County Jail alleging the violation of constitutional rights in the administration of the County Jail while at the same time the District Attorney is prosecuting a criminal case against the prisoner, the Plaintiff in that action?

Opinion

It is the opinion of the Grievance Commission that under the circumstances presented, the District Attorney should disqualify himself from representation of the County officers in one of the pending actions because of the conflict, or at least the potential for conflict, between the interests of his clients in the civil action and the interest of the public in the prosecution of the criminal case.

Title 30 M.R.S.A. § 501 expressly authorizes the County Commissioners to employ other counsel in civil actions involving the County if in their judgment the public interest so requires. Moreover, the Attorney General could be requested to prosecute the pending criminal case because of the conflict with the prisoner’s civil action. The Commission believes that because of the conflict of interest inherent in this situation, the Maine Bar Rules and the public interest require that independent counsel be retained in one of the two cases.

The Commission’s opinion is based on Maine Bar Rule 3.4(b) (Conflict of Interest) and 3.4(c) (Multiple Employment Forbidden). The District Attorney’s representation of the County officials in the civil action is “likely to involve him in representing different interests,” i.e., the interests of his clients in the civil action and the interest of the public in the prosecution of the criminal case. As a practical matter, particularly if the District Attorney is engaged simultaneously in plea bargaining in the criminal case and settlement negotiations in the civil action, it would be extremely difficult, if not impossible, for the District Attorney to separately and independently represent these two differing interests, and there is therefore a real possibility that one of those interests could be compromised for the sake of the other.

Accordingly, the Commission answers the question presented in the negative.


Enduring Ethics Opinion