Disqualification of Prosecutor Because of Former Representation

• Decision Date: 11 January 1985
• Docket Number: 85-1
• Citation: Disqualification of Prosecutor Because of Former Representation, 9 Op. O.L.C. 1, 85-1 (Op. O.L.C. Jan 11, 1985)
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Disqualification of Prosecutor Because of Former Representation

9 Op. O.L.C. 1

Disqualification of Prosecutor Because of Former Representation

No. 85-1

United States Department of Justice

January 11, 1985

Robert B. Shanks Deputy Assistant Attorney General Office of Legal Counsel

Disqualification of Prosecutor Because of Former Representation

In matters that are substantially related to an Assistant United States Attorney's representation of clients prior to joining the government, the attorney should not participate in any investigation or prosecution that foreseeably involves individuals or entities who, although they arguably had not been the attorney's "clients, " were contacted by the attorney in the course of his prior representation and indirectly paid the attorney's legal fees, unless the attorney's participation is essential to the conduct of the Department's law enforcement operation.

Under the Supremacy Clause of the Constitution, a state court or bar association may regulate the conduct of federal attorneys acting in the scope of their federal authority only to the extent that such regulation is not inconsistent with the exigencies of federal employment.

MEMORANDUM OPINION FOR THE DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS

We have been asked to provide advice for a Special Assistant United States Attorney (the AUSA) concerning his potential prosecution of suspected por-nographers who indirectly paid his legal fees while he was engaged in the private practice of law. We understand that the pertinent facts are as follows.

When in private practice, the AUSA represented an unspecified number of individuals charged with displaying or selling obscene materials, to whom we shall refer collectively in this memorandum as XYZ. He was aware at the time that XYZ had obtained the sexually explicit materials for which they were prosecuted from Corporation A, controlled by a Mr. B. The AUSA was also aware that XYZ received reimbursement for legal fees from A and B, although the fees were paid to the AUSA's firm by XYZ. In addition, during this period, the AUSA acknowledged that he communicated with a subsidiary corporation, C, wholly owned by either A or B, regarding the status of certain of these cases. C provided financial support to the individual clients by giving them credit on purchases from C in amounts directly proportionate to the AUSA's legal fees.

The AUSA's position was created by the Immigration and Naturalization Sen/ice to prosecute multi-state conspiracies involving alien smuggling activity. In this capacity, the AUSA has reviewed FBI reports on A and B that contain facts that the AUSA believes "far exceed any knowledge" he may have had of A and B's activities when he was active in the defense of obscenity cases. He anticipates that A and B will be the targets of further FBI investigation and possible prosecution by the Department of Justice. [ 2]

Based on these facts, the AUSA, a member of the Arizona Bar ^[1] has inquired whether he should disqualify himself from participating in the counseling of FBI agents in their pursuit of covert criminal investigations that may involve A and B. He has also inquired whether ethical considerations would preclude him from prosecuting a conspiracy case involving A and B.

The starting point for an analysis of attorney disqualification would ordinarily be the Model Code of Professional Responsibility of the American Bar Association (Model Code). The Model Code has been expressly adopted by the Supreme Court of Arizona, with certain amendments. 17A Ariz. Rev Stat. Ann., S.Ct. Rule 29(a) (1983). The Department of Justice has consistendy maintained, however, that rules promulgated by state bar associations that are inconsistent with the requirements or exigencies of federal service may offend the Supremacy Clause of the Constitution.^[2] This position is supported by the case of Sperry v. Florida, 373 U.S. 379 (1963), in which the Supreme Court held that when Congress and the Executive had authorized nonlawyers to practice before the United States Patent Office, the State of Florida could not prohibit such conduct as the unauthorized practice of law. Similarly this Office has concluded that a Department attorney, acting under Departmental orders in an undercover operation, cannot be guilty of violating state ethical rules "if his acts are authorized by federal law, including the Department's regulations prescribing ethical standards, " just as a federal employee, under appropriate circumstances, may perform authorized federal functions without regard to the limits of state criminal law. See Memorandum for Thomas P. Sullivan, United States Attorney, Northern District of Illinois, from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel 14 (Aug. 1, 1978) (citing In re Neagle, 135 U.S. 1, 75 (1890)).

We analyze below the Model Code and its treatment by the courts of various jurisdictions. When possible, we have relied primarily on decisions of federal courts, but have found it necessary to include some decisions of state courts as well. We do not assume that any of these decisions are binding on the federal officials who will ultimately make the decision about the AUSA's participation in this case, unless mandates of the United States Constitution are involved. Rather, the principles are explained in order to assist you in formulating the managerial judgment that will determine the resolution of the issue. In addition to the Model Code we have sought general guidance from the American Bar Association's new Model Rules of Professional Conduct which replaced the old Model Code in August 1983, but which have not yet been adopted by most states. We discuss, first the attorney's duty of confidentiality to former clients and its [ 3] application to the present circumstances. In Part II, we address other considerations that may bear upon your decision regarding the disqualification. Finally, we address the application of the general principles to Department of Justice officials.

For the reasons discussed below, we conclude that the AUSA's participation in these obscenity prosecutions probably would not violate the mandatory Disciplinary Rules of the Model Code so as to justify disciplinary action by the Arizona Bar against him. Nevertheless, we conclude that the attorney's duty to preserve client confidentiality under the Model Code could reasonably be applied to information that the AUSA received about A and B in the course of his prior representation. In addition, we believe the Ethical Considerations of the Model Code, including the requirement that attorneys avoid even the appearance of professional impropriety, as well as the constitutional protections afforded a criminal defendant, might lead a court to bar the AUSA's involvement in the prosecution of individuals whose interests are so closely intertwined with the subject of his former professional activities. The ethical obligations of attorneys are only heightened in the case of a public prosecutor. We therefore recommend for prudential reasons that the AUSA not participate in any investigations or prosecutions foreseeably involving Corporation A, Mr. B, or Subsidiary C that relate to his prior representation, assuming that his participation is not considered essential to the conduct of the Department's law enforcement operation, even though his disqualification may not be clearly compelled by the prevailing ethics rules.

I. Duty of Confidentiality

The general principles are simply stated. First, a lawyer has a duty to protect confidential information of "one who has employed or sought to employ him." Model Code EC 4-1 (1979). Canon 4 of the Model Code provides that "a lawyer should preserve the confidences and secrets of a client, " and therefore a lawyer may not use such confidences to the disadvantage of the client. Model Code DR 4-101(B)(2). This duty outlasts the lawyer's employment, terminating only upon consent of the client. Model Code EC 4-6. The current Model Code contains no procedural disqualification provision for one whose subsequent employment might require disclosure of client confidences.^[3] Refusal of such employment is suggested in EC 4—5 as an aspirational standard only.

Nevertheless courts have held that Canon 4 implicitly requires disqualification if divulgence of client confidences could occur.^[4] In order to encourage clients freely to discuss confidential problems with their attorneys, courts have [ 4] imposed a strict prophylactic rule which bars an attorney from representing an interest directly adverse to that of a former client. Cord v. Smith, 338 F.2d 516, 524-25 (9th Cir. 1964); Bicas v. Superior Court, 567 P.2d 1198, 1201 (Ariz.Ct.App. 1977). Imposing such a disability upon the attorney is designed to protect the former client from even the possibility of disclosure and wrongful use of information conveyed in confidence. Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190, 1196 (2d Cir.), cert, denied, 419 U.S. 998 (1974); see also Annotation, 52 A.L.R.2d 1243, 1250 § 4 (1957). In the case of public prosecutors, the obligations arising out of Canon 4 of the Model Code may be compounded by constitutional considerations. A prosecutor whose former dealings with the defendant have made him privy to facts related to the prosecution may be barred from the case in order to preserve a fair and impartial trial as guaranteed by the Due Process Clause of the Fifth or Fourteenth Amendment. Gajewski v. United States, 321 F.2d 261, 267 (8th Cir. 1963); Young v. State, 177 So.2d 345, 347 (Fla. Dist. Ct. App. 1965); People v. Rhymer, 336 N.E.2d 203, 204 (Ill.App.Ct. 1975). The special status of a prosecutor is recognized in the Model Code: the prosecutor has an obligation not merely to convict but to seek justice. Mode...