Ethics Opinion

Opinion No. 79-4

April 1979

Summary: Assuming that a recently appointed assistant district attorney, previously retained to represent a defendant, has preserved the confidences and secrets of his former client, another attorney in the office of the district attorney may properly prosecute the former client of the new assistant, even though it involves the same subject matter the new assistant was consulted on.

Facts: Lawyer A was appointed by the district court in January 1978 to represent X, an indigent defendant charged with armed robbery. Subsequently X was indicted for armed robbery and A represented him in the May 1978 superior court arraignment and filed an appearance for "arraignment purposes only." Subsequently X was determined to be no longer indigent and hired a different attorney. Thereafter A became an assistant district attorney in the office in which X's case was still pending.

Discussion: It is obvious, from the facts stated, that an attorney-client relationship existed between X and A even though A filed his appearance in the superior court for "arraignment purposes only." The committee has previously stated that the term "client" as used in DR 4-101(B) "must include a former client as well as a present or continuing client," Opinion 75-7. DR 4-101(A) and (B) provide that confidences and secrets obtained by an attorney shall not knowingly be revealed by the attorney except as permitted under DR 4-101(C). We have previously stated that "the obligation of an attorney to preserve the confidences and secrets of a client survives the termination of his or her employment. EC 4-6." Opinion 76-14.
Obviously Attorney A, as an assistant district attorney, could not prosecute his former client, X, for the armed robbery charge he was originally retained to represent X for.
A has continuing ethical obligation not to discuss any confidences or secrets he obtained from X, during the course of his representation, with any attorney or other person in the office where he currently works (or indeed anyone else). Although the inquiry is not so stated, we assume that A has discharged and will continue to discharge this obligation. If we are wrong in this assumption then no attorney in the office of the district attorney should prosecute X, since no other person would be under an obligation to maintain the confidences and secrets obtained by A.
We previously stated that consent would be needed to represent a wife in a divorce proceeding by an attorney in an office where another attorney associated with him in the same office had previously represented the husband in a substantially related matter, Opinion 76-14. Although the attorney consulted by the wife knew nothing about the prior representation, we concluded on the facts presented, that the second attorney had "continuing access to the contents of the husband's closed file," Opinion 76-14. In this case, however, there is nothing to indicate that any attorney in the office of the district attorney has access to any file of A's concerning A's prior representation of X. Our Opinion 76-14 is therefore distinguishable and we believe that the office of the district attorney may properly prosecute X without his consent.
We do note that DR 5-105(D) provides: "If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."
Although reasonable people may differ on the question the committee believes that this provision should not be construed to disqualify the office of the district attorney under the circumstances described above from prosecuting X. Such an interpretation would have the effect of depriving, as a practical matter, district attorney offices from recruiting from the criminal defense bar. We note that courts have differed on the question as to whether the office of the prosecutor is disqualified from prosecuting a defendant represented in the past by a newly hired assistant. Compare Hannon v. State, 48 Ala. App. 613, 266 So. 2d 825 (1972) with State v. Latigue, 108 Ariz. 521, 502 P. 2d 1340 (1972) and State v. Chambers, 524 P. 2d 999 (N.M. 1974). Also see 31 ALR 3d 953.
The facts in this particular inquiry indicate that the defendant has no objection to the office of the district attorney prosecuting the case and under such circumstances we believe there cannot possibly be any ethical objection raised by DR 5-105(D).

Permission to publish granted by the Board of Delegates, 1979. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.