1994-10

QUESTION:

“I am writing in response to a written ethical inquiry from
you dated August 23, 1994. I am doing this for a
clarification of one of the prior decisions submitted in
the
letter particularly RO-9O-57. I would especially like to
address Issue One and Two in the opinion with regard to the
principle of ‘vicarious disqualification.’ I notice that
under these rulings the Code of Professional Responsibility
disqualified subsequent associate attorneys from
participation in any cause in which the new associate had
previously participated.

I also note the decision in Issue Two states that if this
decision was revisited under the ‘new’ rules it would
probably be addressed in a ‘different fashion.’

Reviewing the new rules particularly Rule 1.11(c)(1) which
is footnoted to the fact that ‘Paragraph (c) does not
disqualify other lawyers in the agency with which the
lawyer
in question has become associated.’

Probably more simply stated, the issues would be:

1. Are District Attorneys and Assistant District Attorneys
disqualified from participation in pending criminal cases
by
the principle of vicarious disqualification when the newly
employed assistant has participated in the pending criminal
case as a defense attorney?

2. Are District Attorneys and Assistant District Attorneys
disqualified from participation in pending criminal cases
by
the principle of vicarious disqualification when the newly
employed assistant has participated in a pending criminal
matter through previous representation of a co-conspirator?

3. Are District Attorneys and Assistant District Attorneys
disqualified from participation in pending criminal cases
by
the principle of vicarious disqualification when the newly
employed assistant has participated in a pending criminal
case through previous representation of an alleged
co-conspirator who is a husband or wife of the subject
case?”

ANSWER QUESTION ONE:

District Attorneys and Assistant District Attorneys are not
vicariously disqualified pursuant to Rule 1.11, Alabama
Rules of Professional Conduct when a newly employed
assistant has participated in criminal cases as a defense
attorney so long as the “new” attorney is adequately
“screened” from participation in the governmental activity.

ANSWER QUESTION TWO:

Same as Answer One, above.

ANSWER QUESTION THREE:

Same as Answer One, above.

DISCUSSION:

The Disciplinary Commission previously issued formal
opinion
RO-90-57 which dealt with similar issues proposed in the
instant inquiry. The Disciplinary Commission determined in
that matter that the determination reached therein might be
different if the Supreme Court of Alabama adopted the Model
Rules of Professional Conduct. On January 1, 1991, the
Supreme Court’s order adopting the Model Rules effectively
established the new standard by which vicarious
disqualification of governmental and private attorneys
would
be determined.

Rule 1.11(c)(1), Alabama Rules of Professional Conduct,
states as follows:

“Rule 1.11 Successive Government and
Private Employment

* * *

(c) 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 lawful delegation may be authorized
to act in the lawyer’s stead in the
matter;….”

The pertinent provision of the Comment states:

“Paragraph (c) does not disqualify other
lawyers in the agency with which the lawyer
in question has become associated.”

Further, Hazard and Hodes, in their treatise The Law of
Lawyering, state:

“When a lawyer moves into the government
from private practice, he is still bound
by Rules 1.6 and 1.9. He may not divulge
any information about a former client and
may not oppose the client in a matter in
which he had previously represented him,
or in a matter substantially related
thereto. This bar can be lifted only by
the consent of the former client.

On the other hand, imputed disqualification
of the government, treating it as a new
‘firm’ under Rule 1.10, is inappropriate.
If Rule 1.10(a) were to apply to the
government, the government would either
have to forego certain enforcement matters,
or hire lawyers who had never been in private
practice, or who had represented only clients
who would never be adverse to the governmental
unit hiring the lawyer.

The only practical escape from this dilemma
is to screen the affected lawyer from
participation in government activity that
is adverse to his former clients and related
to work that he performed for them; Rule
1.11(c)(1) so directs.” §1.11:400.

Further, the Supreme Court of Alabama, in a footnote to its
opinion in Roberts v. Hutchins, 572 So.2d 1231 (Ala. 1990),
affirms the availability of the “Chinese Wall” in certain
cases involving the movement of lawyers between the
government and private law firms. 572 So.2d 1234, n.3.

Based on the foregoing, it is the opinion of the
Disciplinary Commission that an effective application of
the
“Chinese Wall” to the newly employed assistant would allow
the District Attorney and other Assistant District
Attorneys
to participate in pending criminal cases even though the
newly employed Assistant had represented a co-conspirator
of a pending case, specifically, husband and wife
co-conspirators.

The new assistant would have to insure his compliance with
Rules 1.6 and 1.9, Alabama Rules of Professional Conduct.
He
could in no way participate in the pending criminal matters
absent the consent of his client. The remaining members of
the District Attorney’s Staff, employing the effective
“Chinese Wall” concept, would not be vicariously
disqualified from further participation in the other
pending
criminal matter.

To the extent that RO-90-57 is inconsistent with the
holding
herein, that opinion is modified accordingly.

JAM/vf

9/7/94

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