Opinion 367
Question Presented
Should an attorney represent a client if, after trial and appeal which results in a reversal with a remand for a new trial and a former Assistant District Attorney, who participated extensively in the prosecution and appeal, joins the defending attorney's firms as an associate, but who does not intend to participate in subsequent developments in the case?
CONFLICT OF INTERESTS
An attorney should not continue to represent a client after trial and appeal which results in a reversal and remand for a new trial if a former Assistant District Attorney, who participated extensively in the prosecution and appeal of such case, joins the attorney's firm either as a partner or an associate, even though such former Assistant District Attorney agrees not to participate in the subsequent developments of the case.
DR 5-105 D and EC 9-3
Ethical Consideration 9-3 of the Code of Professional Responsibility provides "after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists." Disciplinary Rule 5-105 (D) of the Code of Professional Responsibility provides "if a lawyer is required to decline employment or withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment." The continuation of the same defense counsel in representing the accused after he has become associated with the former Assistant District Attorney that handled the prosecution in the first trial would leave to the public the appearance of professional impropriety in violation of Canon 9. Accordingly, the attorney should not continue to represent the defendant in such a case.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 367 (1974)