MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2014-01

RE: Public Defender seeking office of State’s Attorney

REFERENCES:         Rules 3.8, 1.6, 1.7, 1.11, 1.9, 7.1, 7.4
                                    Gatewood v. State, 388 Md. 526
                                    Maryland State Bar Asso. v. Agnew, 271 Md. 543
Opinion 2014-01

The facts in your inquiry are these: 

  •  
  • You are an assistant public defender and you are considering becoming a candidate for State’s Attorney in the county where you are currently a public defender. 
  •  
  • The Office of Public Defender has expressed concern about potential conflicts of interest your candidacy might raise.
  •  
  • The OPD advises you that these conflicts might require your discharge from employment. 
  •  
  • To limit the potential conflict, you have requested a transfer to another jurisdiction prior to filing for candidacy.

You ask the Committee to advise you if ethical issues exist when an assistant public defender in one jurisdiction seeks employment as a prosecutor in another jurisdiction.  Although that question is complicated enough, the unasked questions involving the application of the Rules of Professional Conduct to an assistant public defender in a county seeking the office of State’s Attorney in the same county if you are elected are more complex.  In answering the more complex situation, this opinion will also address your question.

The Committee believes that the Court of Appeals in Gatewood v. State, 388 Md. 526, effectively answers most of these questions and guides your conduct.  Gatewood informs you that you may not prosecute a person in a “substantially related matter” (1)where you defended the person.

“In situations where the current prosecutor previously defended a criminal defendant and later assumed the role as the prosecuting attorney in the same case, disqualification is required. … Maryland Rule of Professional Conduct (MRPC) 1.7 (a)supports this premise and states that “a lawyer shall not represent a client if the representation of that client will be directly adverse to another client . . . .” MRPC 1.7 embodies the “general proposition [that] loyalty to a client prohibits undertaking representation directly adverse to that client without that client’s consent.” Comment, MRPC 1.7. (2)

The Court recognized a possible distinction where the public defender had merely consulted with the defendant as opposed to representing the defendant, concluding that the latter requires disqualification, while the former might not. (3) And while disqualification may be a concern, that is not the end of the ethical inquiry.

Rule 1.11 guides current and former government lawyers in handling conflicts and establishes guidelines to limit the negative perceptions about what is called the ‘revolving door.’ In pertinent part, the Rule provides:

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
***
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; …

Insofar as the potential conflicts likely to arise when a public defender becomes a member of the Office of a State’s Attorney, the Rule requires compliance with Rule 1.7 and Rule 1.9 unless the law provides otherwise.

Clearly, Rule 1.9 prohibits the State’s Attorney or an assistant from representing the State against a defendant in the same case where the attorney has provided representation to the defendant. Rule 1.9(a) provides specifically:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
The Court of Appeals further interpreted Rule 1.9 in Gatewood concluding that the Rule does not offer a per se prohibition against an attorney who becomes a member of the office of State’s Attorney from prosecuting a former client.

“MRPC 1.9 states that a lawyer shall not “represent another person in the same or a substantially related matter in which the person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation. . . .” MRPC 1.9 (a). Subsequent representation of a position adverse to a former client is permissible. Comment MRPC 1.9. Thus, a public defender (or private practice criminal defense attorney) would not be precluded per se from prosecuting cases should he or she later join a State’s Attorney’s Office.” (4)

The foregoing informs you that if you are elected State’s Attorney, you must recuse yourself from prosecuting a person in the same or a substantially related case in which you represented the person.  Similarly, if you obtained confidential information from a person during your prior representation that might be useful in your prosecution of the person or which might affect the person’s defense, you must recuse yourself.  You are not required, however, to recuse yourself simply because you once represented a person. 

In Gatewood, the Court addressed the question of whether the entire office of state’s attorney must be disqualified if one of its members would be disqualified concluding that no blanket requirement exists.  Instead, a more measured analysis should be used.

In situations where a particular State’s Attorney or Assistant State’s Attorney is disqualified from prosecuting a defendant because he or she represented the defendant earlier in the same case, vicarious disqualification of the entire staff of that State’s Attorney’s Office is not required, rather a discretionary decision by the trial judge, reached only after a hearing is required. Young, 297 Md. at 298, 465 A.2d at 1155. The mere appearance of impropriety, without more, is insufficient to disqualify an entire State’s Attorney’s office. Id.  (Footnotes omitted.) (5)

From the foregoing, the Committee concludes that your prior service as an assistant public defender may affect your ability to handle cases that come to the office of State’s Attorney should you be elected, but does not disqualify you from holding that position and serving.  However, you must carefully review cases that come to your office to determine if you must recuse yourself because of your prior representation of a defendant or your prior involvement in a case.  In some cases, as addressed in Rule 1.11 (b), you may be able to screen yourself from the rest of the office so that the whole office does not suffer imputed disqualification and in others you can seek to have either a special prosecutor appointed or seek the assistance of the Attorney General. 

Insofar as your question about candidacy for office, the Rules do not aptly apply to that question. However, from the foregoing, you would not be barred from seeking office by the Rules of Professional Conduct.  Nevertheless, your duties to a current client might preclude you from advancing a position in the campaign contrary to a client’s interests.  You can not disclose information you learned during representation of a client unless that information were already public as to do so violates the provisions of Rule 1.6.  While the advertising Rules do not apply directly, you cannot make a false or misleading communication about yourself or your services and you must comply with Rule 7.1 neither can you claim an expertise you do not have as prohibited by Rule 7.4 and you must comply with the special requirements imposed on prosecutors to the extent applicable as described in Rule 3.8.  Finally, you will need to be aware that your representation of clients during the campaign may be affected by Rule 1.7.

We hope that we have answered your questions.  Our opinions can be found on line at www.msba.org. 

1.   Rule 1.11 (e) defines “matter” to include “investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.” 

2.  Gatewood, 388 Md. 526 at 54.

3.   In footnote 8, the court said “We note that there may be different considerations in situations where an attorney consults with a criminal defendant and where the attorney undertakes actual representation of that defendant. The latter triggers disqualification should that attorney later become a prosecutor in the same case. Young, 297 Md. at 287, 465 A.2d at 1150. The former may not, depending on the extent of the disclosure, if any, by the defendant of confidential communications to the attorney. Comment, MRPC 1.7. Other jurisdictions that have permitted a prosecutor to prosecute a defendant when the defendant alleges such a conflict do so on the grounds that the attorney involvement generally arose only to the level of consultation, not representation, and that no confidential information was divulged or could be brought to bear against the defendant. Allan L. Schwartz & Danny R. Veilleux, Annotation, Disqualification of Prosecuting Attorney in State Criminal Case on Account of Relationship with Accused, 42 A.L.R. 5th 581, 612, § 3 [b] (1996 & Supp. 2004).” 

4. Gatewood,  388 Md. 526 at 543-544.

5.   Gatewood, 388 Md. 526 at 541-542.