Do county/district attorney's have the power to waive conflicts of interest on behalf of it's client(the State)?

I ask b/c a former assistant has been appointed to represent a probationer on an MTR and this former is assistant is the one who signed the complaint for the underlying offense.

What is the conflict? How would the information obtained by the former prosecutor be used to harm the interests of the State?

Seems like a clear conflict, does it not? Attorney represents the state in signing complaint/information and later represents the defendant on the same case.

Is the information that was obtained by the prosecutor confidential? Would it not have been disclosed as discovery? And, how does the prosecutor owe any continuing loyalty to the former "client" -- the county?

A defense attorney that becomes a prosecutor might well have obtained information from the client that was confidential. Disclosure or use of it as a prosecutor would obviously violate the attorney-client privilege and be contrary to the ongoing duty to protect the client's interest.

I'm not saying I disagree. I just would like to hear the explanation.

[This message was edited by JB on 01-22-07 at .]

I have seen former prosecutors not appointed to cases that were filed during their tenure with the da's office, even if that attorney had nothing to do with the intake or filing/presenting to grand jury, based upon conflict of interest.

Seems like a conflict to me.

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Originally posted by JB:
I'm not saying I don't disagree.

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What exactly does this mean, JB?

isn't this person disqualified under article 2.08?

Article 2.08 seems pretty clear. The law disqualifies a prosecutor from handling a case as a defense attorney that was previously handled by that same person as a prosecutor.

As for GG's question, obviously I was misquoted by myself.

So the question remains, can CA's/DA's waive CCP 2.08 or TRPC 1.09 on behalf of their client(the county/state)? Do they have that power?

Article 2.08 is stated in terms of a disqualification, which is generally recognized as unwaiveable. See how it works for judges.

i've never understood this distiction, but that was what it comes down to with judges who are not authorized to act. in cases where there's a judge who is disqualified because of a relationship to the party or the case, that judge's actions are a nullity and the conviction would be a nullity (void, rather than merely voidable). that type of error is unwaivable, Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987).

however, in cases dealing with attorneys the right to conflict-free counsel can be waived if done so knowingly and intelligently. Ex parte Prejean, 625 S.W.2d 721 (Tex. Crim. App. 1981). of course, that case dealt with a non-appointed attorney.

sorry, i've nothing more definitive for you. there was an unpublished case where the San Antonio Court held this type of disqualification was waivable. Perry v. State, 2006 WL 2616442 (Tex. App.--San Antonio 2006, no pet. h.)

sorry also, that my analysis keeps skewing towards whether the defendant can waive the conflict rather than the prosecutor. that seems to be where the cases go. and i keep getting hung upo on the question of whether the State has anything to waive. does the State have a right to a defendant represented by conflict-free counsel?

[This message was edited by David Newell on 01-22-07 at .]

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JB
posted 01-22-07

Article 2.08 is stated in terms of a disqualification, which is generally recognized as unwaiveable. See how it works for judges.

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Well, it was the Judge that appointed him in the first place, just b/c he was the only defense attorney in the room when the request was made.

Now its up to me to point out CCP 2.08 and fear the wrath that may follow.

Rule 1.10 ..."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 rules seem to think someone can consent, even if the CCP doesn't spell it out. Of course the defendant better expressly consent. But doesn't such representation, and for that matter consent after consultation, really smack of impropriety?

Just my two cents, but I have a real dim view of anyone that would ask for such consent, or give it. My view is that prosecutors should have at least the same, if not a greater, loyalty to the State as we would expect of those that represent individuals. Or maybe I think too highly of Texas and its people as a client, they should know prosecutors are just defense lawyers in training. Of course I so love to hear that.