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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-08
Conflicts: representation by former State's Attorney of a prosecuting witness in a civil matter against the defendant in a criminal case
Your letter of inquiry poses the following facts: You are currently (as of June 1, 1987) a part-time Assistant County Attorney for County and have opened up your own practice. For the 17 months prior to that you were a full-time Assistant State's Attorney for County. You ask whether or not it would be inappropriate for you to represent a prosecuting witness in a civil matter brought against a defendant whose criminal case was resolved while your represented the State.
The Committee has reviewed a number of Ethics opinions addressing similar questions under the old Code of Professional Responsibility. These included 75-16, 76-2, 78-21, 81-29, 82-22, 82-28 and 82-33. Some parts of these opinions were helpful, but the Committee felt that for your situation we needed to look primarily to the Maryland Rules of Professional Conduct that became effective January 1, 1987.
Rule 1.11(a) of the Maryland Rules of Professional Conduct provides:
""Except as law may otherwise expressly permit, a lawyer shall not represent a private 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 consents after consultation. . .""
The comments to Rule 1.11 provide in pertinent part as follows:
""Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service.""
Rule 1.11(b) states:
""Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.""
In this case, your factual outline indicated that you were the prosecuting attorney and as such had actual knowledge of the contents of the State's file on the defendant. Unless all of the material contained therein and any information otherwise obtained by you during the prosecution of this person are readily discoverable, this Rule would seem to bar your subsequent representation of the private client.
Finally, Rule 7.3 of the Maryland Rules of Professional Conduct outlines permissible Direct Contact with Prospective Clients. The Committee expressed concern that the possibility existed that some discussions were held with this prospective client about the impending change in your employment status and the future availability of your professional services in this subsequent civil action.
The Committee, therefore, concludes that you may not ethically represent the prosecuting witness in a civil matte against a defendant whose criminal case was resolved while you represented the State unless:
(1) The government consents to this representation after consultation; and,
(2) You possess no confidential government information which will give your private client an unfair advantage and,
(3) Any direct contacts with the prosecuting witness did not involve the purpose of obtaining professional employment.
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