Opinion #130. Vicarious Disqualification for Members of Special Assistant District Attorney's Law Firm
Issued by the Professional Ethics Commission
Date Issued: February 3, 1993
The District Attorney of X County had asked Law Firm A to participate in the following program. The District Attorney will appoint associates of Law Firm A as “Special Assistants” to the District Attorney on a case‑by‑case basis. Each Special Assistant will handle only the criminal case(s) assigned to him or her and will have the duties of preparing the case and conducting the trial. Although it has been suggested that the Special Assistant will have no prosecutorial discretion, we interpret this as a statement that the Special Assistant will not engage in the pre‑trial plea‑bargaining process. Neither will the Special Assistants have any participation in the non‑criminal aspects of the District Attorney’s jurisdiction.
Law Firm A represents one or more municipalities in the County of X and it is possible that these municipalities may have matters which come before the County Commissioners.
Under these circumstances, is Law Firm A disqualified from representing client municipalities before the County Commissioners?
The statutory authority for appointment of assistant district attorneys makes no distinction between “special” and ordinary assistant district attorneys. The duties of assistant district attorneys are set forth in 30‑A MRSA Sec. 272. They include the obligation to “assist the District Attorney in the ordinary duties of that office.
30‑A MRSA Sec. 282 requires that the District Attorneys appear for the counties in any case in which “. . . official acts of the called into question . . .” Although the statute authorizes the County Commissioners to “employ other counsel,” the Commissioners rely as a practical matter upon the office of the District Attorney and its staff for advice in the discharge of their duties.
This Commission and the Grievance Commission have had several occasions to apply the Bar Rules in the context of various relationships between District Attorneys and their assistants and members of the private bar.
Although the provisions of Bar Rules 3.4(a) and 3.4(b) extend the disqualification of a lawyer to all members of a lawyer’s firm, Rule 3.4(k), in order for a conflict to arise upon the facts posited here, it would be necessary for this Commission to find that the provisions of Rule 3.4(k) apply to common employment in a government agency such as a District Attorney’s Office. The Commission is of the opinion that Rule 3.4(k) does not apply to common employment in a government agency. Two sources of authority compel the Commission to reach this conclusion. First, the Reporter’s Note accompanying the adoption of the Bar Rule states as much, without elaboration. Second, this view is consistent with the opinion of the Law Court in Superintendent of Insurance v. Attorney General, 558 A.2d 1197 (Me. 1989). Although the Law Court did not expressly cite Rule 3.4(k), the conclusion reached in that case implicitly and necessarily holds that subdivision (k) of Rule 3.4 has no applicability to the Attorney General’s Office.
Since, under this analysis, the associate of Law Firm A cannot be said to automatically represent every other “client” of the District Attorney’s Office, except to the extent that the associate might be requested by the District Attorney to participate in advising the County Commissioners, no conflict of interest would appear.
In rendering this opinion we recognize that this conclusion is inconsistent with the opinion rendered in Opinion No. 49.
One member of the Commission dissents from this opinion, and would hold that Rule 3.4(k) applies to public agencies; that Superintendent of Insurance v. Attorney General, supra is an unique case based in significant part upon the peculiar constitutional status of the Attorney General; and that the role of the District Attorney’s Office in advising the County Commissioners in a quasi‑judicial proceeding constitutes acting “in a judicial capacity” within the meaning of Rule 3.4(g) and that, unlike the conflict situations covered by 3.4(b) and (c), the 3.4(g) conflict cannot be waived.
 We think it is impossible for an attorney to be trying cases on behalf of the state and avoid engaging in some plea‑bargaining in the course of trial.
 Opinion No. 36, Assistant District Attorney and partner of his/her spouse; Opinion No. 39, Assistant District Attorney and his/her law partner; Opinion No. 42, Assistant District Attorney and his/her spouse; Opinion No. 49, Assistant District Attorney as member of firm representing Towns; Opinion No. 65, District Attorney and his/her sibling‑in‑law; Opinion No. 70, Assistant District Attorney and his/her spouse.
 “As used in this rule the term `lawyer affiliated with him or his firm’ does not include . . . common employment in a government agency . . .”