Opinion #39. Associates of Part-time Assistant D.A.Representing Criminal Defendants

Issued by the Professional Ethics Commission

Date Issued: June 2, 1983

Facts

A member of a law firm with offices located in several counties has been offered a position as a part‑time Assistant District Attorney in one of the Prosecutorial Districts. The firm presently represents criminal defendants as well as inmates at the State Prison.

Question

May other members of the firm continue to represent criminal defendants as defendants in any court in the State?

Opinion

Although the Commission has no authority to express its opinion on the interpretation of statutes or Rules of Court other than the Bar Rules, an adequate response to the question raised cannot ignore Rule 53A, Maine Rules of Criminal Procedure which states:

No attorney for the State . . . and no attorney holding himself out as a partner or associate (of the attorney) . . . shall be retained or employed or shall act as attorney for any defendant in any criminal proceeding in any court of this State or in any civil case involving the same facts.

The prohibition reflects the fundamental importance of the avoidance of any appearance of impropriety in the prosecution of criminal cases. There are no exceptions permitted by the Rule. It matters not that the Assistant District Attorney and his associates may practice in different districts nor is there any provision for waiver or consent by the parties.

The adversarial relationship of the prosecutor and criminal defense attorney is clearly a matter of such paramount importance in the administration of criminal justice that Rule 53A does not grant exceptions that might otherwise apply in other circumstances (cf. Maine Bar Rules 3.4(b), 3.4(k)). This means that the firm cannot continue to represent defendants in pending criminal proceedings.

In light of the answer to this question, it is unnecessary to discuss related questions raised by the inquiry.


Enduring Ethics Opinion