If an elected DA previously worked as a defense attorney, does she have to get a special prosecutor for a new offense committed by a former client when the prior enhancement used to increase his punishment is the exact case for which she represented him?

Question 2: What about motions to revoke probation, when the defendant's attorney in the case that placed him on probation is now the elected DA?

Two cases which might help in answering the question: Reed, 137 S.W.3d at 679 and Canady, 100 S.W.3d at 32. Plus, the observation about increased cost and hampering the administration of justice for no apparent reason in Madden, 911 S.W.2d at 241 seems relevant in this situation as well. But consider Opinion No. 538 of the Bar Comm. on Prof. Ethics, 64 Tex. Bar J. 698 (June 2001). I think other persons in the office could proceed in any event utilizing the "Chinese wall" concept.

There is a great discussion of this in the TDCAA publication Texas Prosecutorial Ethics under the chapter dealing with Conflicts of Interest

All case law and reading on ethics aside - the answer should be if you have an Assistant, they can handle it, if not, get a Prosecutor Pro Tem, because if you handle it, things that would otherwise be clear will get real complicated and I can hear the writs popping now. I was a defense attorney for 10 years before becoming a prosecutor and my father was also a defense attorney even after I came to work for the DA any case that I or my Dad had been involved in that came up either as a Motion to Revoke or an enhancement, was handled by another ADA or the DA. We have, after over 10 years almost run out of those cases, and my father has since passed away, but the best approach is don't do it.

When the elected prosecutor has the conflict, the office generally is conflicted as well. If it's an assistant, another assistant could do the job.

Two dangers here. First, there is a former client who could and might complain. I suppose you could see a waiver from the defendant, but what about your current client, the people of the State of Texas? Maybe as a prosecutor you should be doing more that just offering a pen packet -- maybe some evidence from the first trial. Don't know here from what has been posted, but there are likely to be questions about the level of prosecution against a former client...

I asked the questions specifically regarding the elected DA having or not having a conflict. The DA here had a 23 year practice on the other side before becoming DA. If we loosely set the parameters, we could have conflicts all the time. I was asking to get advice on how broad or narrow we need to define "What is a conflict?"

Right now we see the issuing coming up most often on Motions to Revoke and on Enhancement paragraphs in new indictments.

call me at 512.474.2436 and let's talk in detail...

rob kepple

There is an absolute prohibition against the prosecutor handling a motion to revoke on the same case for which she seved as the defendant's attorney. See the TDCAA publication "Texas Prosecutorial Ethics" authored by the most capable Edward L. "Chip" Wilkinson, a Tarrant County prosecutor.

Also, the "Chinese wall" concept does not apply if the elected prosecutor has a conflict. Appointment of a special prosecutor is required.

Ken's absolutely right. An awful lot of our business in the Prosecutor Assistance division of the AG's office comes from exactly the to fact situations you described.

Thank you for all of your responses.

The appointment of an attorney pro tem is certainly one answer, and perhaps the best answer. But, Opinion 538 also states: "To encourage government service, the commentary to the Rules also suggests that other lawyers in the prosecutor�s office would not be prohibited from prosecuting the case but the new district attorney should be screened away from the prosecution of the case against the former client. See Comment 3 and 9, Rule 1.10." Therefore, I would argue against a motion which sought to recuse or disqualify the entire office from prosecuting the former client of the elected, if you felt comfortable in letting an assistant handle the matter.