Opinion 332

Statement of Facts Discussion Conclusion

23 Baylor L. Rev. 863 (1972)

CONFLICTING INTERESTS - PUBLIC PROSECUTOR REPRESENTING CIVIL SUITORS
It is improper for a public prosecutor (District Attorney, County Attorney or City Attorney) to represent any party in a civil matter arising out of an occurrence which also is the subject of criminal investigation or prosecution within the jurisdiction of such public prosecutor except in rare instances where his duties as prosecutor have been fully performed before actual or contemplated connection untie the civil matter and where also no advantage has been obtained through the public office.

Canons 5, 6, 9, 24, 25.

While the above questions concern particularly a County Attorney, the controlling principles hereinafter stated apply as well to any other public prosecutor.

American Bar Association Opinion No. 135 (March 15, 1935) holds that when a public prosecutor has investigated an occurrence for the purpose of determining criminal responsibility he is disqualified to act as counsel for any party in a civil action based on that occurrence. Basically, we agree with the principles stated in that opinion, but we modify slightly its blanket disqualification.

The client of a prosecuting attorney is the public body and his primary duty is to the public. That duty requires him to investigate complaints within his jurisdiction and to proceed in accordance with the interests of justice. Canon 5 provides in part that "It should be the primary duty of a member engaged in public prosecution not to convict, but to see that justice is done." Obviously no outside interest should be permitted to conflict with or interfere with the performance of those duties and it seems apparent that if a public prosecutor undertakes the representation of a civil litigant in a case arising out of an occurrence which is also the subject of a criminal investigation there would likely be a conflict of interest which, under Canon 6, would disqualify the public prosecutor from representing the civil litigant. It seems further apparent that the public prosecutor's handling of the criminal matter would in all probability require him to communicate with each party to the occurrence, either as a witness or as an actual or potential defendant, and if the prosecuting attorney is at the same time representing, or if he proposes to represent, one of the parties to the transaction, there is likely to be a violation of Canon 9.

In Opinion 143 (March, 1937), this Committee held that a prosecuting attorney may not ethically prosecute a defendant on a criminal charge growing out of an accident and at the same time represent the plaintiff in a civil damage suit against the same defendant arising out of the same occurrence. In Opinion 312 (January, 1966), we further held that it is unethical for a prosecuting attorney to represent a civil litigant when his duty might require investigation or prosecution of a criminal action arising out of the same facts. We reaffirm those opinions.

The controlling principle which we here lay down is that if a public prosecutor is in fact employed or contemplates being employed to represent one of the parties in a civil matter at any time when his duties as public prosecutor require investigation of a potential criminal charge or prosecution of a criminal charge against one of the parties to the transaction which is or will be involved in the civil matter, he is disqualified by reason of an actual or potential conflict of interest. If, however, his duties as public prosecutor have been fully performed and terminated at the time he is approached with respect to civil representation and if he has gained no confidential information by reason of his public office, he would not be ethically disqualified to represent one of the parties in the civil matter.

In representing civil litigants, a public prosecutor must also carefully avoid the use of his official office and its facilities, investigators, etc., in violation of Canons 24 and 25. For guiding principles in this connection see Opinion 48 (February, 1952), Opinion 49 (March, 1952), Opinion 172 (March, 1958), Opinion 183 (October, 1958) and Opinion 309 (January, 1966).

It is clear that the circumstances under which a public prosecutor can represent civil litigants in matters with which his office has any official connection are extremely limited and he would be well advised to avoid even the appearance of impropriety. (9-0.)