Additional Ethical Considerations for All Public Lawyers

Conflicts of Interest

While RPC 1.7 requires all attorneys to refrain from the representation of clients whose legal interests are adverse, this ethical dictate does not necessarily preclude the Attorney General, district attorneys, and city attorneys from representing numerous agencies within a government entity, in various capacities, consistent with their respective statutory responsibilities. Nor does the representation of an administrative agency which combines investigative, prosecutorial and judicial functions necessarily constitute a conflict of interest.[29]

RPC 1.11 places specific limitations on current and former public lawyers from participating in matters in which an attorney participated “personally and substantially” before moving into or out of public service.[30] The Rule permits screening to avoid imputed disqualification; however, in criminal prosecutions vicarious disqualification may be the appropriate action, depending upon the specific facts involved:

  [V]icarious disqualification may be warranted in extreme cases where the appearance of unfairness or impropriety is so great that the public trust and confidence in our criminal justice system could not be maintained without such action. Such an extreme case might exist even where the state has established an effective screen precluding the individual lawyer's direct or indirect participation in the prosecution.[31]  

Communicating with Unrepresented or Represented Persons

Although prosecutors and government civil attorneys serve the interests of all citizens, they do not represent private parties (or government employees in personnel matters) and should take care when interacting with the public in any capacity (including education outreach) to ensure that constituent service does not run afoul of any legal or ethical constraints. They must be vigilant against any potential violation of RPC 4.2 – the no-contact rule[32] – or RPC 4.3, especially in matters where the interests of a private party may be adverse to the interests of the government. When initiating a prosecution, RPC 3.8(b) further requires that the prosecutor make reasonable efforts to assure the accused is advised of the right to counsel and afforded a reasonable opportunity to obtain counsel, while RPC 3.8(c) prohibits the prosecutor from seeking to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons.[33]

The Consequences of Ethical Violations

Prosecutors enjoy absolute immunity for acts that are “intimately associated with the judicial phase of the criminal process” and qualified immunity for acts deemed investigative or administrative in nature.[34] Government civil attorneys also generally possess statutory and common law immunity in the performance of their duties.[35] Nevertheless, an ethical violation by a public lawyer can have serious ramifications for citizens. Prosecutorial misconduct may result in a mistrial or reversal on appeal – or worse, a wrongful conviction. A failure to provide competent legal representation to government officials may result in liability for the government entity and cost taxpayers money. When public lawyers err it can also undermine confidence in government and the justice system.