Ethics Hotline & Opinions

ETHICS DOCKET NO. 1988-76

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-76

Conflicts: Part-Time County Attorney who Handles Forfeiture of Funds in CDS and Gambling Cases Representing Criminal Defendants in CDS or Gambling Cases


Your letter indicates that you are currently a part-time Assistant County Attorney for Charles County, Maryland and that you also have a private office. One of your duties as an Assistant County Attorney is to handle the forfeiture of funds when the Charles County Sheriff's Department seizes funds and an arrest is made in regard to a CDS or gambling violation under the Maryland Code. You request an opinion from this Committee as to whether it would be an ethical violation for you to represent someone who has been arrested by the Charles County Sheriff's Department in regard to a CDS or a gambling violation.

It is the Committee's opinion that Rule 1.11 (c) would apply to your situation. That Rule reads as follows:

Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: (1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by loss of delegation, may be authorized to act n the lawyer's stead in the matters; or (2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.

Subsection (d) of said Rule defines matter to include ""any judicial or other proceeding, application, request for ruling, or other determination, contract, claim, controversy, investigation, charge, accusation arrest or other particular matter involving a specific party or parties; and any other matter covered by the conflict of interest rules of the appropriate government agency.""

It is the opinion of the Committee that if, as a part of your private practice, you do choose to represent a person arrested the Charles County Sheriff's Department in regard to a CDS or gambling violation that you could not then handle the forfeiture of funds ""matter"" in your capacity as an Assistant County Attorney for Charles County, Maryland.

The comment to Rule 1.11 indicates that 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. The Committee assumes for purposes of this opinion that another Assistant County Attorney could be delegated the handling of the forfeiture matter in your stead.

Your letter also indicates that in your ten months as an Assistant County Attorney, only one forfeiture matter has gone to trial. It is the Committee's opinion that it is irrelevant whether or not the forfeiture of funds matter goes to trial. You would be precluded from handling that matter from its inception on behalf of the County Attorney's Office.


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