Has anyone had experience dealing with a FORMER asst. DA showing up as retained counsel for a defendant where the former ADA had previously worked on the case and even signed plea papers at one time (representing the State).....??

Should be a conflict:

http://www.txethics.org/reference_opinions.asp?opinionnum=243

http://www.txethics.org/reference_opinions.asp?opinionnum=124

http://www.txethics.org/reference_opinions.asp?opinionnum=124

http://www.txethics.org/reference_opinions.asp?opinionnum=345



John L. Pool

CCP Art. 2.08 makes it plain that an attorney is disqualified from appearing on different sides of the same criminal case. File a grievance.

I think whether the attorney is disqualified or subject to an ethical violation is a closer question. It all depends on what the word "case" means in 2.08 or what "matter" means in Tex.Discip.R.Prof.Cond. 1.10(a). But, "matter" was very broadly interpreted in Ethics Op. 538. It sounds like your situation involves some post-conviction matter (i.e. a probation revocation, motion for shock probation, motion for early release from probation). Would the unfair advantage spoken of in comment 3 to Rule 1.10 necessarily be involved in those situations? A revocation, for example normally presumes the validity of the original proceeding, is conceptually an administrative proceeding rather than a criminal prosecution, and is based on facts which did not exist at the time the lawyer was representing the government. Rule 1.10 (c), which may be a basis for disqualification, might still come into play in some of these situations, but not always. Rule 1.10(f) refers to adjudicatory proceedings, so maybe that means proceedings under art. 42.12, sec. 5(b) are considered part of the original "matter". If the lawyer were attacking the validity of the original proceeding, e.g., by habeas corpus or maybe even a petition for expunction, then at least 1.10 (c) might more easily be said to be in play. It is a very interesting question. It seems I recall a somewhat similar discussion on the forum in the past.

[This message was edited by Martin Peterson on 04-08-04 at .]

If memory serves me correctly (which is no longer a given), the 47th D.A.'s office (in Amarillo) faced a situation a few years back in which the A.D.A. who was the intitial intake attorney on a triple-homicide capital murder showed up as one of the defense attorneys on the case as it prepared to go to trial. I believe their motion to disqualify was successful, albeit the trial court's disposition was somewhat begrudging. You might contact them for any forms they might have.

Setting aside for a moment the various legal technicalities of the Code of Criminal Procedure and Disciplinary Rules, we need to ask ourselves why it would be morally questionable for a lawyer to take both sides of a question for the same defendant. Any thoughts?

I think the answer initially depends upon whether you buy into a prosecutor's representation of the State as cloaking him/her with the same obligations to his/her client as a private lawyer faces. The Supreme Court flatly holds that an attorney is the fiduciary of any party from whom the attorney receives confidential information (as defined by the disciplinary rules). National Med. Enters. v. Godbey, 924 S.W.2d 123, 132 (Tex. 1996) (orig. proceeding). Moreover, the disciplinary rules are quite clear that a government lawyer may not represent a private client in a matter in which the lawyer participated personally and substantially as a public officer. Tex. Disciplinary R. Prof'l Conduct 1.10(a). Returning to the philosophical question, these rationales seem to counsel that a lawyer's obligation of loyalty and confidence aren't appreciably different simply because his/her client is the State, rather than an individual or private entity. Frankly, in light of our adversarial system, I don't see a convincing argument for drawing any such distinction. Nor do I think the Code of Criminal Procedure's admonition that a prosecutor's duty is to see that justice is done changes the mix. If a prosecutor believes that justice requires the termination of proceedings favorably to an accused, then that obligation can be satisfied on the front end, rather than the back. Otherwise, the "irrebutable" presumption that confidential information is imparted to a party's lawyer serves the system well and should control (think of the complexity and propensity for recurrence of satellite litigation over whether a lawyer actually received confidential information from a client). But I'm certainly willing to consider any countervailing argument.

Some have argued that since defense counsel sees the file under the open file policy in our offices, he has no distinct "advantage" having seen the State's file while a prosecutor. Does anyone share my opinion that work product and trial strategy are important to keep to ourselves?

A second question arises: can the ex-ADA have his client waive the conflict? In this particular instance, I have (among other things) a letter in the file signed by the ex-ADA, urging another state's Board of Pardon/Paroles to NOT parole this defendant back to their state. I find it hard to show that to your client, then ask him to sign a piece of paper agreeing to ignore it....but who knows??

Lastly, just to clarify the situation: it is NOT a revocation. This defendant's case has been sitting around long enough (approx. 12 mo.) for the ex-ADA to work on it, leave employment with our office and then somehow end up as retained counsel after two other court-appointed lawyers had a stab at it. Makes you wonder how that retainer fee was negotiated.....

Any other thoughts ??

Rule 1.10(c) would seem to apply despite the open file argument. After all, not everything we know about a case comes from our file. It is not a question of whether his current client "waives" the conflict.

File a motion to disqualify and a grievance. Clearly this is the same case or matter. If the lawyer is convinced an injustice is occurring, let him try to convince you as a concerned citizen and not the accused's attorney.