Opinion #25. Disqualification of Former Prosecutor in Subsequent Personal Injury Case Against Respondent

Issued by the Professional Ethics Commission

Date Issued: August 25, 1981

Facts

Attorney A represents Client C in a personal injury claim arising out of a one‑car accident in which C was the passenger and D was the driver. During the initial interview, C disclosed that D had been drinking at the time of the accident and had been cited for OUI by the investigating officer. D’s insurance carrier promptly acknowledged liability to C, but the case remains open pending resolution of damages.

Thereafter, D was tried and convicted for OUI in the District Court; the prosecution was handled by A’s partner, B, who is an Assistant District Attorney. C was among three witnesses called in the presentation of the State’s case, and the evidence included a showing that D’s blood alcohol level was .17.

Issue Presented

Whether A shall be barred from representing C against D in the personal injury matter because of his partner’s having prosecuted D.

Discussion

Under the circumstances here described, there are at least two rules which are being or have been violated, and we see no alternative but to disqualify Attorney A from representing C.

Rule 3.4(h) provides that:

A lawyer shall not accept private employment in a matter in which he held substantial and relevant responsibility while he was a public official or employee.

It is clear that Attorney B, as a public prosecutor, held the relevant responsibility for handling the case against D, and in the course of discharging that responsibility became privy to all aspects of the State’s case against D. It thus seems to us that the “matter” for which B had responsibility was virtually identical to the liability issues in C’s case against D: proof that D was intoxicated at the time of the accident, and thus negligently caused damage to C. If B would be precluded from participating in this same “matter,” his partner A is similarly disqualified. Rule 3.4(k).

Further, Rule 3.7(i)(4) provides that:

A public prosecutor or other government lawyer shall not conduct a civil or criminal case against any person relative to a matter in which he represents or has represented the complaining witness.

Application of this rule to the foregoing facts makes it clear that Attorney B could not and should not have conducted the prosecution for OUI against D because his partner represented one of the complaining witnesses. The purpose of the rule is clear: to prevent a government attorney from gaining advantage for a private client through governmental action, and to remove the risk of overzealous governmental prosecution being motivated by private interests. We are in no position to know the extent to which C’s private interests may or may not have affected the OUI prosecution against D. Since the prohibited conduct has already occurred, the only appropriate remedial action remaining is to disqualify the prosecutor and his firm from representing C in the civil case.

Thus, under either Rule 3.4(h) or 3.7(i)(4), Attorney A should resign from his representation of C. The Commission also believes the foregoing result is compelled by Rule 53A of the Rules of Criminal Procedure.


Enduring Ethics Opinion