Disqualification of Prosecutor
Because of Former Representation
In matters that are substantially related to an Assistant United States Attorney’s representation of
clients prior to joining the government, the attorney should not participate in any investigation
or prosecution that foreseeably involves individuals or entities who, although they arguably
had not been the attorney’s “clients,” were contacted by the attorney in the course o f his prior
representation and indirectly paid the attorney's legal fees, unless the attorney’s participation
is essential to the conduct o f the D epartm ent’s law enforcement operation.
Under the Supremacy Clause o f the Constitution, a state court or bar association may regulate the
conduct of federal attorneys acting in the scope of their federal authority only to the extent
that such regulation is not inconsistent with the exigencies of federal employment.
January 11, 1985
M em orandum O p in io n for th e D ir e c t o r ,
E x e c u t iv e O f f ic e fo r U n it e d States Attorn ey s
We have been asked to provide advice for a Special Assistant United States
Attorney (the AUSA) concerning his potential prosecution of suspected por-
nographers who indirectly paid his legal fees while he was engaged in the
private practice of law. We understand that the pertinent facts are as follows.
When in private practice, the AUSA represented an unspecified number of
individuals charged with displaying or selling obscene materials, to whom we
shall refer collectively in this memorandum as XYZ. He was aware at the time
that XYZ had obtained the sexually explicit materials for which they were
prosecuted from Corporation A, controlled by a Mr. B. The AUSA was also
aware that XYZ received reimbursement for legal fees.from A and B, although
the fees were paid to the AUSA’s firm by XYZ. In addition, during this period,
the AUSA acknowledged that he communicated with a subsidiary corporation,
C, wholly owned by either A or B, regarding the status of certain of these cases.
C provided financial support to the individual clients by giving them credit on
purchases from C in amounts directly proportionate to the AUSA’s legal fees.
The AUSA’s position was created by the Immigration and Naturalization
Service to prosecute multi-state conspiracies involving alien smuggling activ
ity. In this capacity, the AUSA has reviewed FBI reports on A and B that
contain facts that the AUSA believes “far exceed any knowledge” he may have
had of A and B’s activities when he was active in the defense of obscenity
cases. He anticipates that A and B will be the targets of further FBI investiga
tion and possible prosecution by the Department of Justice.
1
Based on these facts, the AUSA, a member of the Arizona Bar,1has inquired
whether he should disqualify himself from participating in the counseling of
FBI agents in their pursuit of covert criminal investigations that may involve A
and B. He has also inquired whether ethical considerations would preclude him
from prosecuting a conspiracy case involving A and B.
The starting point for an analysis of attorney disqualification would ordi
narily be the Model Code of Professional Responsibility of the American Bar
Association (Model Code). The Model Code has been expressly adopted by the
Supreme Court of Arizona, with certain amendments. 17A Ariz. Rev. Stat.
Ann., S. Ct. Rule 29(a) (1983). The Department of Justice has consistently
maintained, however, that rules promulgated by state bar associations that are
inconsistent with the requirements or exigencies of federal service may offend
the Supremacy Clause of the Constitution.2 This position is supported by the
case of Sperry v. Florida, 373 U.S. 379 (1963), in which the Supreme Court
held that when Congress and the Executive had authorized nonlawyers to
practice before the United States Patent Office, the State of Florida could not
prohibit such conduct as the unauthorized practice of law. Similarly, this Office
has concluded that a Department attorney, acting under Departmental orders in
an undercover operation, cannot be guilty of violating state ethical rules “if his
acts are authorized by federal law, including the Department’s regulations
prescribing ethical standards,” just as a federal employee, under appropriate
circumstances, may perform authorized federal functions without regard to the
limits of state criminal law. See Memorandum for Thomas P. Sullivan, United
States Attorney, Northern District of Illinois, from Mary C. Lawton, Deputy
Assistant Attorney General, Office of Legal Counsel 14 (Aug. 1, 1978) (citing
In re Neagle, 135 U.S. 1, 75 (1890)).
We analyze below the Model Code and its treatment by the courts of various
jurisdictions. When possible, we have relied primarily on decisions of federal
courts, but have found it necessary to include some decisions of state courts as
well. We do not assume that any of these decisions are binding on the federal
officials who will ultimately make the decision about the AUSA’s participation
in this case, unless mandates of the United States Constitution are involved.
Rather, the principles are explained in order to assist you in formulating the
managerial judgment that will determine the resolution of the issue. In addition
to the Model Code, we have sought general guidance from the American Bar
Association’s new Model Rules of Professional Conduct, which replaced the old
Model Code in August 1983, but which have not yet been adopted by most states.
We discuss, first, the attorney’s duty of confidentiality to former clients and its
1The ALISA is also a m em ber o f the Illinois Bar. Because o u r conclusions are based on general principles,
we do not an ticip ate that any different result w ould obtain under Illinois law. Illinois has adopted the ABA
M odel C ode w ith no relevant amendments. S ee II0 A III. Ann. Stat. foil. I 772 (Sm ith Hurd Supp. 1983).
2 The Suprem acy C lause provides that the “C onstitution, and Law s o f the U nited States which shall be made
in P ursuance th e re o f. . shall be the supreme Law o f the Land; and the Judges in every State shall be bound
thereby, any T hing in the C onstitution or Laws o f any State to the C ontrary notw ithstanding.” U.S. Const, art.
VI, cl. 2.
2
application to the present circumstances. In Part II, we address other considerations
that may bear upon your decision regarding the disqualification. Finally, we address
the application of the general principles to Department of Justice officials.
For the reasons discussed below, we conclude that the AUSA’s participation
in these obscenity prosecutions probably would not violate the mandatory
Disciplinary Rules of the Model Code so as to justify disciplinary action by the
Arizona Bar against him. Nevertheless, we conclude that the attorney’s duty to
preserve client confidentiality under the Model Code could reasonably be
applied to information that the AUSA received about A and B in the course of
his prior representation. In addition, we believe the Ethical Considerations of
the Model Code, including the requirement that attorneys avoid even the
appearance of professional impropriety, as well as the constitutional protec
tions afforded a criminal defendant, might lead a court to bar the AUSA’s
involvement in the prosecution of individuals whose interests are so closely
intertwined with the subject of his former professional activities. The ethical
obligations of attorneys are only heightened in the case of a public prosecutor.
We therefore recommend for prudential reasons that the AUSA not participate
in any investigations or prosecutions foreseeably involving Corporation A, Mr.
B, or Subsidiary C that relate to his prior representation, assuming that his
participation is not considered essential to the conduct of the Department’s law
enforcement operation, even though his disqualification may not be clearly
compelled by the prevailing ethics rules.
I. Duty of Confidentiality
The general principles are simply stated. First, a lawyer has a duty to protect
confidential information of “one who has employed or sought to employ him.”
Model Code EC 4-1 (1979). Canon 4 of the Model Code provides that “a
lawyer should preserve the confidences and secrets of a client,” and therefore a
lawyer may not use such confidences to the disadvantage of the client. Model
Code DR 4-101(B)(2). This duty outlasts the lawyer’s employment, terminat
ing only upon consent of the client. Model Code EC 4-6. The current Model
Code contains no procedural disqualification provision for one whose subse
quent employment might require disclosure of client confidences.3 Refusal of
such employment is suggested in EC 4—5 as an aspirational standard only.
Nevertheless, courts have held that Canon 4 implicitly requires disqualifica
tion if divulgence of client confidences could occur.4 In order to encourage
clients freely to discuss confidential problems with their attorneys, courts have
3 Canon 5, w hich provides that “a law yer should exercise independent professional judgm ent on beh alf o f a
client,” does contain a disqualification provision. DR 5 - 105(A) requires a law yer to decline proffered
em ploym ent if the exercise o f his independent professional judgm ent is likely to be adversely affected by a
conflict o f interest. The purpose o f this provision is prim arily to protect the lawyer from com peting client
interests, rather than to protect the confidentiality o f client inform ation. A merican B ar Foundation, Annotated
Code o f P rofessional Responsibility 228 (1979). Although the provision is arguably relevant here, its
principal application is in sim ultaneous m ultiple client representation. Id.
4 This determ ination is based, in part, on EC 4 -5 , which states that “no em ploym ent should be accepted that
m ight require such disclosure [of client confidences]."
3
imposed a strict prophylactic rule which bars an attorney from representing an
interest directly adverse to that of a former client. Cord v. Smith, 338 F.2d 516,
524-25 (9th Cir. 1964); Bicas v. Superior Court, 567 P.2d 1198, 1201 (Ariz.
Ct. App. 1977). Imposing such a disability upon the attorney is designed to
protect the former client from even the possibility of disclosure and wrongful
use of information conveyed in confidence. Meyerhofer v. Empire Fire &
Marine Ins. Co., 497 F.2d 1190, 1196 (2d Cir.), cert, denied, 419 U.S. 998
(1974); see also Annotation, 52 A.L.R.2d 1243, 1250 § 4 (1957). In the case of
public prosecutors, the obligations arising out of Canon 4 of the Model Code
may be compounded by constitutional considerations. A prosecutor whose
former dealings with the defendant have made him privy to facts related to the
prosecution may be barred from the case in order to preserve a fair and
impartial trial as guaranteed by the Due Process Clause of the Fifth or Four
teenth Amendment. Gajewski v. United States, 321 F.2d 261, 267 (8th Cir.
1963); Young v. State, 111 So. 2d 345, 347 (Fla. Dist. Ct. App. 1965); People v.
Rhymer, 336 N.E.2d 203, 204 (111. App. Ct. 1975). The special status of a
prosecutor is recognized in the Model Code: the prosecutor has an obligation
not merely to convict but to seek justice. Model Code EC 7-13. Accordingly,
the courts have developed a rule for the disqualification of prosecutors, which
has frequently been stated as follows: “an attorney cannot be permitted to
participate in the prosecution of a criminal case if, by reason of his professional
relations with the accused, he has acquired knowledge of facts upon which the
prosecution is predicated or which are closely interwoven therewith.” Young v.
State, 111 So. 2d 345, 346 (Fla. Dist. Ct. App. 1965); People v. Gerold, 107
N.E. 165, 177 (111. 1914); State v. Leigh, 289 P.2d 774, 111 (Kan. 1955); see
Annotation, 31 A.L.R.3d 953, 957-58 (1970).
This disqualification rule rests on a generally irrebuttable presumption that
in the course of an attomey-client relationship, confidences were disclosed to
the attorney by the client. A court will not inquire whether disclosures were in
fact made or whether the attorney is likely to use confidences to the detriment
of his former client. See, e.g., NCK Org. Ltd. v. Bregman, 542 F.2d 128, 134
(2d Cir. 1976); Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1384—85
(3d Cir. 1972), cert, denied, 411 U.S. 986 (1973). The court’s inquiry is limited
solely to whether the matters of the present proceeding are “substantially
related” to matters of the prior representation. T.C. Theater Corp. v. Warner
Bros. Pictures, 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953).
The courts have generally applied the disqualification rule and the presump
tion rigorously. For example, in the leading case of Ernie Industries, Inc. v.
Patentex, Inc., 478 F.2d 562 (2d Cir. 1973), Judge Kaufman, writing for the
court, held that a plaintiffs counsel in patent litigation, who had previously
represented the part-owner of the defendant corporation involving an issue
identical to that in the present proceedings, would be disqualified from assert
ing the related claim against his former client. Interpreting Canon 4, the court
adopted the rule that “[w]here it can reasonably be said that in the course of
former representation an attorney might have acquired information related to
4
the subject matter of his subsequent representation, the attorney should be
disqualified.” Id. at 571. The courts will not require the former client to
demonstrate that his attorney actually possessed confidential information in
addition to having access to it, for even if such proof were available, the former
client might not be able to use it for fear of disclosing the very confidences he
wishes to protect. See Note, Attorney’s Conflict o f Interests: Representation of
Interest Adverse to that o f Former Client, 55 B.U. L. Rev. 61,76 (1975); Alpha
Inv. Co. v. City of Tacoma, 536 P.2d 674, 676 (Wash. Ct. App. 1975).
The courts will not presume irrebuttably that an attorney has acquired
confidential information when the person seeking disqualification was not
actually the attorney’s client, but was the codefendant of a former client in the
prior proceeding. The mere possibility that in preparing a cooperative defense
the attorney may have received confidences of the codefendant is insufficient
to establish grounds for disqualification. Under these circumstances, the court
will disqualify the attorney only if it finds that the attorney was actually privy
to confidential information of the former codefendant. Wilson P. Abraham
Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); Fred
Weber, Inc. v. Shell Oil Co., 432 F. Supp. 694, 697 (E.D. Mo. 1977). The
presumption has also been found to be rebuttable in other situations in which
the person urging disqualification was not himself an actual client of the
attorney. For example, a prosecuting attorney was entitled to rebut the infer
ence that as a result of his former representation of the defendant’s father-in-
law in a separate matter, he had acquired confidences or secrets related to the
defendant’s case. United States v. Newman, 534 F. Supp. 1113, 1125-26
(S.D.N.Y. 1982). These principles define the inquiry that will determine whether
and to what extent the AUSA owes a duty to protect confidences he may have
acquired from A and B in the course of his former representation. First, we
must consider whether A and B were “clients” of the AUSA and can thus claim
the benefit of the irrebuttable presumption that he possesses confidences of
theirs. Second, if A and B were not “clients” in the traditional sense of the
word, we will examine whether they are nevertheless entitled to be protected
by a continued obligation of confidentiality arising out of Canon 4. Finally, we
must determine whether there is a “substantial relation” between the former
obscenity representation and the prospective prosecution of A and B.
A. Client Status o f A and B
The Model Code does not define the term “client.” This omission poses
problems in applying the Model Code’s provisions to the undefined relation
ship that the AUSA maintained with Corporation A, Mr. B and Subsidiary C,
who financed and participated in the AUSA’s representation of criminal defen
dants. “The canons and disciplinary rules do not address themselves frankly
and explicitly to this special set of relationships, and there is awkwardness in
attempts to apply the canons and rules.” Moritz v. Medical Protective Co., 428
F. Supp. 865, 872 (W.D. Wis. 1977) (referring to interrelationships among
insurer, insured, and attorney).
5
This awkwardness can be alleviated somewhat by resort to analogies. Like
the attorney who represents both an insured and an insurer, the AUSA had
direct obligations to his clients XYZ, while maintaining some concomitant
relationship with the financiers A and B. One court, acknowledging that such a
situation is sui generis, held that the insurer, which chooses the attorney for the
insured, is the “client” of the attorney and the attorney must observe Canon 4
obligations to both the insurer and the insured. Id. Thus, when an insurance
policy imposes on the insurer the duty to defend a claim against the insured and
entitles the insurer both to select the lawyer who will represent the insured and
to supervise the defense, then that insurer enjoys an attomey-client relationship
with the attorney it selects. Id. This determination is supported by the “commu
nity of interest” that exists between the insurer and the insured. ABA Comm,
on Professional Ethics, Formal Op. No. 282 (May 27, 1950). That interest is
largely financial. Moritz, 428 F. Supp. at 872.
An application of this analogy to the AUSA’s case would require further
facts than those provided to us. It would be germane, for example, whether A
and B had a formal agreement to pay the legal fees of XYZ; whether A and B
had the right to choose and supervise the attorney for the defense of XYZ; and
whether A and B also had agreed to pay fines or penalties imposed on XYZ, so
as to establish a community of financial interest. Without this information, we
can only identify the possibility that A and B could be considered “clients” of
the AUSA by resort to insurance case law.
Another possible analogy is the relation between a parent corporation and
the attorney for a subsidiary corporation. Some authorities indicate that in such
a situation, the parent can be considered a client of the attorney. In one case, the
court held that the evidentiary attomey-client privilege, notwithstanding the
general rule that the privilege is waived if an outsider is made privy to attomey-
client information, was preserved when an officer of the parent company
participated in confidential discussions between the subsidiary and its attorney.
In this context, a third person who was informed in order to further the interest
of the principal client, and to whom disclosure was “reasonably necessary” to
further the purpose of the legal consultation, was found a “client” to the extent
of preserving the privilege. Insurance Co. ofN. Am. v. Superior Court, 166 Cal.
Rptr. 880 (Ct. App. 1980). In order to apply this analogy conclusively, we
would again need further facts upon which to base our judgment. For example,
it would be significant whether the communications between A and B and the
AUSA were made to further the defense of XYZ, whether they included any
confidences or secrets of XYZ,5 and whether XYZ consented to such disclosures.6
5 T he C ode defines “confidences” as “inform ation protected by the attom ey-client privilege under appli
cable law s,” and “ secrets” as “o th er information gained in the professional relationship that the client has
requested b e held inviolate o r the disclosure o f which w ould be em barrassing or w ould be likely to be
detrim ental to the clien t.” M odel Code DR 4 -1 0 1 . The ethical obligations o f an attorney consequently
encom pass not only privileged information b u t also other inform ation.
6 If the com m unications had included confidences o r secrets, an d no consent had been given by XYZ, then
either A o r B w ould have been included in th e client relationship, or the AUSA might have breached his
obligation to p ro tect the confidences of XYZ u n d e r DR 4 -1 0 1 (B ).
6
Even without identifying a third-party payor as a “client,” the Supreme
Court has recognized the danger of divided allegiance that may result from
third-party payment of legal fees, especially in a criminal case. In Wood v.
Georgia, 450 U.S. 261 (1981), the Court found an impermissible conflict of
interest in an attorney’s representation of two employees of an “adult” movie
theater charged with distributing obscene materials. The conflict arose be
cause, under an employment agreement, the owner of the theater undertook to
furnish several forms of assistance to the employees if they should face legal
trouble as a result of their employment, including payment of legal fees, fines,
and bonds. Id. at 266. Recognizing a significant risk that a lawyer in this
situation will be reluctant to encourage his client to offer testimony against the
employer or otherwise to take action detrimental to the employer in marshaling
a defense, the Court concluded that the employees had been deprived of due
process rights. Id. at 269. Although the Court did not explicitly find that the
employer was itself a “client” of the lawyer, the Court stated that the lawyer
was the “agent” of the employer, and thus subject to a possible conflict of
interest. Id. at 267; see also In re Abrams, 266 A.2d 275, 278 (N.J. 1970) (it is
“inherently wrong for an attorney who represents only the employee to accept a
promise to pay from one whose criminal liability may turn on the employee’s
testimony”). Thus, the courts have recognized that in the criminal setting, the
loyalty incident to a fee arrangement can be significant, although these cases do
not resolve whether the loyalty gives rise to a duty of confidentiality to the
third-party payor.7
Although these examples do not resolve the AUSA’s issue directly, they
illustrate the possibility that persons not immediately identifiable as “clients”
may still be placed in a position to share some of the attributes of an attomey-
client relationship. Some authorities, in contrast, have determined that the
payment of legal fees by a third person, in and of itself, does not create an
attomey-client relationship between the attorney and his client’s benefactor
sufficient to sustain a claim of privilege for communications between them.
Priest v. Hennessy, 409 N.E.2d 983, 987 (1980) (third party merely paid legal
fees; court refused privilege to fact of fee arrangement); see ABA/BN A Lawyer’s
Manual on Professional Conduct 80—4301 (1984) (submission of Maryland
State Bar Association Committee on Ethics). Thus, the third-party payment of
legal fees without further participation in the defense may be insufficient to
establish a basis for the strict evidentiary attomey-client privilege or the more
fluid Canon 4 relationship.
The determination whether A and B were, in fact, “clients” of the AUSA
would entail the application of facts beyond the information provided to us.
However, we do not believe such a determination is necessary to reach our
conclusion here. The Model Code and the case law have given an expansive
7 The M odel Code discourages third-party fee arrangem ents. It perm its such an arrangem ent only with
consent o f the client after full disclosure, and charges the attorney w ith the responsibility to ensure that his
independent judgm ent is not impaired thereby. M odel Code DR 5 -1 0 7 , EC 5 -2 3 . The Model C ode does not
make clear, however, w hat obligations, if any, the law yer may have to those who pay his fees.
7
interpretation to the attomey-client relationship in the context of Canon 4, as
discussed below. In our view, they provide a sufficient basis for encompassing
A and B within the scope of the AUSA’s obligations of confidentiality, irre
spective of a formal attomey-client relationship.
B. Alternative Basis fo r Obligation o f Confidentiality
The Model Code states clearly that the obligation of a lawyer to protect
confidences is broader than the scope of the evidentiary attomey-client privi
lege. Model Code EC 4—4.8 Not only does it protect a client’s “secrets” as well
as “confidences,” see supra note 5, but it also is owed by the attorney to “one
who has employed or sought to employ him.” Model Code EC 4—1. The Model
Code does not explain why this phrase was chosen rather than the term “client.”
It is not clear whether the phrase “one who has employed or sought to employ
him” was intended to include one who pays the legal fees of a client, but the
effect of the phrase is to broaden the class of individuals to be protected by the
policy of encouraging frank communications for preparation of an attorney’s case.
Interpreting the attorney’s Canon 4 duties, courts have frequently applied the
Canon broadly in an effort to protect the confidences of those who might not
qualify as “clients” in the strict sense of the term: “The sole requirement under
Canon 4 is that the attorney receive the communication in his professional
capacity.” Doe v. A Corp., 330 F. Supp. 1352,1356 (S.D.N.Y. 1971), affd , 453
F.2d 1375 (2d Cir. 1972). In addition, there is authority for the proposition that
a “fiduciary obligation or an implied professional relation” may exist in the
absence of a formal attomey-client relationship. Westinghouse Elec. Corp. v.
Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978). Thus, “‘[i]t is clear
that where an attorney receives confidential information from a person who,
under the circumstances, has a right to believe that the attorney, as an attorney,
will respect such confidences, the law will enforce the obligation of confidence
irrespective of the absence of a formal attomey-client relationship.’” United
States v. Newman, 534 F. Supp. 1113, 1125 (S.D.N.Y. 1982) (quoting Nicholas
v. Village Voice, Inc., 417 N.Y.S.2d 415, 418 (Sup. Ct. 1979)).
In one case, the Florida District Court of Appeal found that Canon 4
precluded a prosecutor, who had been a member of a public defender’s office
that represented the defendant, from participating in the prosecution of the case
if he had ever interviewed the defendant in his former capacity. The court thus
did not invoke the irrebuttable presumption that confidences were conveyed to
the attorney — a presumption accorded only to former “clients” of an attorney
— but instead permitted the defendant to establish that he had, in fact, con
veyed confidences. Without seeking to identify an “attomey-client” relation
ship between the prosecutor and the accused, the court considered whether the
prosecutor’s former “professional relations” and “dealings” with the accused
8 T he M odel R ules o f Professional Conduct explain that “[t]he confidentiality rule applies not merely to
m atters com m unicated in confidence by the clien t but also to a ll inform ation relating to the representation
Rule 1.6 com m ent, 52 U .S.L .W . 6 (Aug. 16, 1983) (em phasis added).
8
were sufficient to deprive the accused of a fair trial. Young v. State, 177 So. 2d
345, 346 (Fla. Dist. Ct. App. 1965).
The Nebraska Supreme Court disqualified a prosecutor who had had a “loose
office arrangement and association” with one of the defendant’s lawyers, even
though the partnership had been practically dissolved, each partner practiced
separately, they did not share fees, and no conversation regarding the defendant
had taken place between them. Again, the court did not attempt to establish the
existence or non-existence of an attomey-client relationship between the pros
ecutor and the accused. Rather, it focused on the possibility that the accused
was denied the impartiality to which he was entitled. Such a division of forces
in a law office “would be altogether out of harmony with the age-old ethics of
the profession.” Fitzsimmons v. State, 218 N.W. 83, 84 (Neb. 1928).
A prosecuting attorney who represented himself over the telephone to the
defendant as defense counsel and induced her to impart confidential informa
tion prejudicial to her defense came “within the spirit if not the letter” of the
rule against prosecuting a former client, and was consequently disqualified.
The court noted that had the attorney acquired the same information in the role
of an actual defense attorney he would have been barred from prosecuting the
defendant. Thus, although there was no actual attomey-client relationship,
Canon 4 was invoked. State v. Russell, 53 N.W. 441, 444 (Wis. 1892). Simi
larly, a prosecuting attorney who, before becoming prosecutor, had met with
the defendant and quoted a price for representing him should have been
disqualified from the case on Canon 4 grounds, even though he never actually
represented the defendant. Satterwhite v. State, 359 So. 2d 816, 818 (Ala.
Crim. App. 1977). If an attorney has discussed a defendant’s case with him, the
attorney is thereby disqualified even if there is no contract of employment or
attomey-client relationship. Id.
As discussed above, a criminal defendant who established that the prosecut
ing attorney had represented his codefendant in a prior case was entitled to
disqualify the prosecutor if he could show that the prosecutor had obtained the
defendant’s confidences as a result of the prior representation. Wilson P.
Abraham Constr. Corp. v. Armco Steel Corp., 559 F.2d 250, 253 (5th Cir.
1977). The obligations of Canon 4 have therefore been extended even to one in
a collateral position with respect to the attorney and his principal client. In each
of these cases, despite the absence of an attomey-client relationship, the
attorney was barred from representing an interest that would risk disclosure of
information confided in the attorney by a person whom the court found to fall
within the ambit of the non-disclosure policy.
The rule is perhaps better illustrated by the cases in which the relation
between the attorney and the defendant was held to be too attenuated to require
automatic disqualification from the subsequent matter. From those decisions a
common principle emerges: when the attomey-client relationship is not direct,
the attorney will be permitted to prosecute the case only if he could not possibly
have gained confidential information regarding it. See, e.g., Gajewski v. United
States, 321 F.2d 261, 268 (8th Cir. 1963) (no disqualification from criminal
9
prosecution on account of prior civil representation because misuse of confi
dential information inconceivable); Dunn v. State, 264 So. 2d 823, 825 (Miss.
1972) (no disqualification on account of prior discussion with defendant re
garding possible representation, because facts of case never discussed); Autry
v. State, 430 S.W.2d 808, 810 (Tenn. Crim. App. 1967) (same; no confidential
communication passed between attorney and accused); State v. Henry, 9 So. 2d
215, 217 (La. 1942) (no disqualification on account of discussion with
defendant’s relatives; trial court found attorney had “no information of any
kind from the defendant or anyone else” regarding case). These opinions
appear to recognize that the evil to be avoided by a decision to disqualify is the
potential misuse of confidential information, or the appearance thereof. If the
court is satisfied that no such information was acquired, disqualification will
not be ordered.
In light of these elaborations upon the ethical duties of an attorney, we
conclude, first, that any communications that took place between A and B and
the AUSA would appear to fall within the general policy of Canon 4. “A
communication must be regarded as confidential where it possibly is so,
although it is not entirely clear that the relations exist.” H. Drinker, Legal
Ethics 134 (1980). Information imparted to an attorney by his client’s benefac
tor for the purpose of assisting in the client’s defense is part of the overall
attomey-client channel of communication that Canon 4 is designed to foster.
Because “the issue is .. . whether there exist sufficient aspects of an attomey-
client relationship for purposes o f triggering inquiry into the potential con
flict,” Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748—49 (2d Cir. 1981),
we believe that the precise circumstances under which A and B communicated
to the AUSA are a critical element of the inquiry. Even if the communications
between the AUSA and A and B could not be shielded in a court proceeding by
the privilege reserved for only a limited class of attomey-client conversations,
if these communications were reposed in an attorney acting in his professional
capacity in the defense of a client, then they should be protected. Second, if
confidences were conveyed to the AUSA, he could not claim the benefit of the
case law in which the courts found that it was impossible for the attorney to
have acquired confidential information under the circumstances.
Canon 4 analysis is unaffected by the possibility that all the information the
AUSA acquired about A and B may already be known independently by other
investigative and prosecutive officials. The Model Code itself emphasizes that
the ethical obligation of a lawyer to guard confidences and secrets, “unlike the
evidentiary privilege, exists without regard to the nature or source of informa
tion or the fact that others share the knowledge." Model Code EC 4-4 (empha
sis added). The ethical precept is not nullified even if all confidential informa
tion to which a lawyer had access is independently known to others from any
source. NCK Org. Ltd. v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976). On
balance, therefore, we believe the better course is for the AUSA to observe the
obligations of Canon 4 with respect to any confidences and secrets of A and B
that he acquired in his role as defense attorney.
10
C. Substantial Relation Between Former and Subsequent Matters
The third aspect of a disqualification analysis seeks to ascertain whether the
matter of former representation is ‘“ substantially related’ to the issues likely to
arise during the course of the litigation.” Redd v. Shell Oil Co., 518 F.2d 311,
315 (10th Cir. 1975). In the present case, we must determine whether the
representation of XYZ and the involvement of A and B in the obscenity cases
are so closely connected with the prospective prosecution of A and B on
charges of conspiracy to commit obscenity-related offenses that confidences
might be jeopardized. See Richardson v. Hamilton Int’l Corp., 469 F.2d 1382,
1385 (3d Cir. 1972), cert, denied, 411 U.S. 986 (1973). The requisite substanti
ality is present if the factual contexts of the two matters are similar and if there
is reasonable probability that confidences were disclosed which could be used
against the client. Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980).
The courts have employed the “substantial relation” test as a further means
to ensure the protection of client confidences. Duncan v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981); American Roller
Co. v. Budinger, 513 F.2d 982, 984 (3d Cir. 1975). The overlap of subject
matters, issues, and other facts between the two representations must be delin
eated with specificity to allow for the careful comparison that the rule requires.
Duncan, 646 F.2d at 1029. It is clear that the inquiry is meticulously factual;
“merely pointing to a superficial resemblance” is insufficient. Id.
Applying that principle to the AUSA’s situation, we believe there may well
exist a substantial relation between the information acquired in the course of
representing XYZ on obscenity charges and a conspiracy prosecution of A and
B for obscenity-related activities. However, we do not have sufficient facts
about the two prosecutions to draw the fine lines required by the cases. The
determination whether there is a substantial relation must be made with a full
knowledge of the two matters, and the knowledge we have acquired is limited.
Although the prospective prosecutions of A and B are presumably distinct from
those of XYZ, it appears that the overall business operation which is the target
of investigation involves facts common to the two. The AUSA has stated that
the information he reviewed in FBI files regarding A and B “far exceeds” any
knowledge he may have acquired from his representation of XYZ, not that it is
unrelated or qualitatively different. The sexually explicit materials that clients
XYZ were charged with displaying were supplied by A and B, so that facts
relating to the publications themselves would likely overlap. In addition, the
basic legal obscenity issues are likely to be very similar.9 Moreover, the scope
of the proposed investigation as described is evidently quite broad. At least in
theory, it is possible that the investigation could eventually lead to involvement
of the AUSA’s “conspiracy” objective, and we believe the possibility that
clients XYZ could be implicated in such a conspiracy sharpens the substantial
relation between the matters. Of course, if XYZ were implicated, everything
9 Even if the prosecutions o f XY Z w ere brought under state law and the proposed conspiracy charges will
be based on federal law, there would undoubtedly be a significant sim ilarity o f legal issues.
11
we have discussed regarding the AUSA’s duties to A and B would apply a
fortiori to XYZ, with whom he maintained a formal attomey-client relation
ship. We believe, therefore, that very careful consideration must be given to
whether a court would find a substantial relation between the former represen
tation of XYZ (with assistance from A and B) and the current investigation or
prosecution of A and B.
We reiterate the general rule: “an attorney cannot be permitted to participate
in the prosecution of a criminal case if, by reason of his professional relations
with the accused, he has acquired knowledge of facts upon which the prosecu
tion is predicated or which are closely interwoven therewith.” Although we are
not in possession of enough facts to apply these words conclusively to the
present situation, we believe that a court would likely find that “by reason of
his professional relations,” the AUSA has acquired knowledge of facts “which
are closely interwoven” with the prospective prosecution. If such a finding
could be made on these facts, no more concrete predicate would be required to
indicate the need for disqualification of a criminal prosecutor.
II. Other ComsntJeraitioinis
A. Appearance o f Impropriety
Canon 9 of the Code imposes upon attorneys an obligation to avoid even the
appearance of professional impropriety. Model Code DR 9-101; EC 9-6. One
commentator has gone so far as to urge that this canon be used to disqualify
attorneys even when the connection between former and subsequent represen
tations is not great enough to satisfy the substantial relation test of Canon 4. See
Note, Ethical Considerations When an Attorney Opposes a Former Client: The
Need fo r a Realistic Application o f Canon Nine, 52 Chi.-Kent L. Rev. 525,
535-37 (1975).
In Rodriguez v. State, 628 P.2d 950, 957 (Ariz. 1981), the Arizona Supreme
Court took this approach and held that a public defender did not violate the
Disciplinary Rule when he failed to withdraw from representation of a defen
dant whose defense could have implicated a former client of the office. Canon
9 required disqualification of the attorney, however, because there was an
unavoidable appearance that confidential information gained from the former
client could be used to his disadvantage. Some courts have declined to adopt
this “blanket approach” to Canon 9. See, e.g., Silver Chrysler Plymouth, Inc. v.
Chrysler Motors Corp., 518 F.2d 751, 757 (2d Cir. 1975) (Canon 9 “not
intended completely to override the delicate balance created by Canon 4”);
Board ofEduc. v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979) (“[W]hen there
is no claim that the trial will be tainted, appearance of impropriety is simply too
slender a reed on which to rest a disqualification order except in the rarest
cases.”). More often, courts will decide a disqualification issue on the basis of
Canons 4 and 9 in combination, and Canon 9 generally serves to resolve any
doubts in favor of disqualification. See Model Code EC 9-2.
12
B. Possible Effects o f Failure to Disqualify
The possible adverse consequences of participation in this matter are varied.
First, the AUSA could be found to have violated the Disciplinary Rule prohib
iting disclosure of client confidences. In our opinion, however, his involvement
would not fall strictly within the letter of the Disciplinary Rules so as to
warrant a finding of violation. The ambiguity of A and B’s “client” status,
while not automatically obviating the necessity for disqualification, would
lessen the likelihood that a court would impose disciplinary sanctions in this
unique situation without some showing of intentional wrongdoing. Cf. In re
Rujfalo, 390 U.S. 544, 550 (1968) (lawyer facing penalty of disbarment is
entitled to due process protections). To justify discipline against an attorney, a court
must be satisfied by clear and convincing evidence that the attorney has violated one
or more of the Disciplinary Rules. In re Mercer, 652 P.2d 130, 133 (Ariz. 1982).
Because transgression of a prophylactic rule does not necessarily connote any actual
wrongdoing, and because there is no clear requirement of withdrawal under these
circumstances in the Disciplinary Rules themselves, we believe a court would not
find intentional misconduct sufficient to justify professional censure.
Professional discipline is not the only possible consequence of an erroneous
decision to participate in the case, however. Even if conduct were insufficient
to support an ethical violation, it could still require the attorney’s disqualifica
tion from a particular matter. The vast majority of criminal cases in which
disqualification was required have not resulted in disciplinary action against
the attorney. Rather, courts have granted reversals of convictions on the ground
that the defendant was denied a fair trial. See, e.g.. State v. Leigh, 289 P.2d 774,
111 (Kan. 1955) (reversal although no claim of intentional misconduct by the
attorney); People v. Rhymer, 336 N.E.2d 203, 205 (111. Ct. App. 1975) (same).
A federal court dismissed an indictment because the prosecutor who presented
the case to the grand jury had had impermissible professional dealings with the
accused. United States v. Catalanotto, 468 F. Supp. 503, 507 (D. Ariz. 1978).
Although there is a paucity of federal cases involving the issue of disqualifica
tion of a prosecuting attorney on these grounds, in analogous state cases the
prosecutor’s relation to the accused has been the basis for post-conviction
relief, see Young v. State, 111 So. 2d 345, 348 (Fla. Dist. Ct. App. 1965), a new
trial, see State v. Halstead, 35 N.W. 457, 459 (Iowa 1887), recusal orders, see
Love v. Superior Court, 168 Cal. Rptr. 577,581 (Ct. App. 1980) (recusal order
for discrete six-person section of district attorney’s office “tainted” by former
representation), and mistrials, see Burkett v. State, 206 S.E.2d 848, 851 (Ga.
1974) (reversible error for trial court merely to disqualify prosecutor without
granting mistrial). In sum, the prosecuting attorney who approaches the ethical
standards too lightly risks not only professional censure but also the loss or
postponement of a conviction.
C. Vicarious Disqualification
Under the Model Code, “if a lawyer is required to decline employment or
withdraw from employment under a Disciplinary Rule, no partner, or associ
13
ate, or any other lawyer affiliated with him or his firm, may accept or continue
such employment.” Model Code DR 5-105(D) (emphasis added).10This impo
sition of a disability upon the entire “firm” — a term not defined in the Model
Code11 — is referred to as “vicarious disqualification” or “imputed knowl
edge.” Its rationale is, once again, the possibility that confidential information
possessed by an attorney will filter out to others who could use it to the
disadvantage of a client.
Authorities disagree regarding whether the imputation of knowledge from
one member of a firm to the others should be extended to non-profit organiza
tions such as legal services agencies and prosecutors’ offices. The imposition
of vicarious disqualification is premised, in part, upon the community of
economic interests among members of a firm who share profits, and those
interests are not present in public offices. American Bar Foundation, Annotated
Code o f Professional Responsibility 249 (1979) (Comment on DR 5-105(D));
ABA Formal Op. 342 (Nov. 24, 1975), reprinted in 62 A.B.A. J. 517 (1976).
Recognizing these differences, many courts have declined to apply the
vicarious disqualification rule devised for civil firms to nonprofit legal organi
zations, including prosecutors’ offices. They reason that the premise of the
rule, the free flow of information within a law partnership, is not presumptively
applicable outside the partnership context. See, e.g., United States v. Standard
Oil Co., 136 F. Supp. 345, 360 (S.D.N.Y. 1955); In re Charles Willie L., 132
Cal. Rptr. 840, 843 (Ct. App. 1976). Other courts recognize that “particular
caution is in order before an entire prosecutorial office, as distinguished from a
particular prosecutor in that office, is recused.” Chadwick v. Superior Court,
164 Cal. Rptr. 864, 867 (Ct. App. 1980). The United States District Court for
the District of Arizona disqualified a member of the United States Attorney’s
office who had represented the defendant in a substantially related matter to
avoid the appearance of impropriety, and took the further step of disqualifying
the Tucson office of the United States Attorney. It denied, however, the motion
to disqualify the entire district office, expressing the view that the prosecution
could properly be conducted by the larger Phoenix office, on the rationale that
the size and complexity of substantial governmental agencies makes imputa
tion of knowledge impossible. United States v. Catalanotto, 468 F. Supp. 503,
506 (D. Ariz. 1978).
On the whole, the weight of national authority appears to reject recusal of an
entire prosecutorial office. See Chadwick, 164 Cal. Rptr. at 871 (canvassing
jurisdictions). Federal courts are particularly reluctant to order disqualification
10 A s adopted by A rizona, however, DR 5 - 1 05(D ) has a different scope. It appears to require vicarious
d isq u alificatio n only w hen an attorney has b een recused because o f a conflict o f interest (Canon S) rather than
the risk o f disclosing clien t confidences (C anon 4). 17A Ariz. Rev. Stat. Ann., S. Ct. Rule 29(a), DR 5 -
105(D) (1983 Supp.)- T here is as yet no case law explaining the difference in application between the Model
C ode and the A rizona am endm ent.
11 T h e M odel R ules o f Professional C onduct define “firm " as including “ lawyers in a private firm , and
law yers em ployed in the legal department o f a corporation o r other organization, or in a legal services
organ izatio n .” Rule 1.10 com m ent, 52 U.S.L.W . 9 (Aug. 16, 1983).
14
of an entire United States Attorney’s office. For example, a district court
granted a motion to disqualify an entire United States Attorney’s office on th£
ground that one of several defendants had been represented by one of the
current Assistant United States Attorneys. The Sixth Circuit reversed, holding
that the vicarious disqualification rule of DR 5-105(D) is “inapplicable to other
government lawyers associated with a particular government lawyer who is
himself disqualified by reason of DR 4-101 . . . or similar disciplinary rules.”
United States v. Caggiano, 660 F.2d 184, 191 (6th Cir. 1981) (quoting ABA
Formal Op. 342), cert, denied, 455 U.S. 945 (1982). As explained by then-
District Judge Kaufman in United States v. Standard Oil Co., 136 F. Supp. 345,
363 n.34 (S.D.N.Y. 1955):
[T]he hands of government cannot be tied because of the former
associations of one of its officials; therefore, that top person
disqualifies himself from handling that particular matter, and
the conflict of interest question is considered resolved. Simi
larly, the particular lower ranking attorney disqualifies himself
and another attorney handles the matter. No such opportunity is
given to one partner in a law firm to disqualify himself and
qualify the firm. The only explanation for the difference in
result is that the practical exigencies are more compelling in the
former situation than the latter. This is another illustration of the
fact that ethical problems cannot be viewed in a vacuum; practi
cal, everyday facts of life must be considered.
The Department would vigorously oppose any attempt to disqualify an entire
United States Attorney’s office on the basis of a past professional affiliation of
one of its assistants because of the extreme interference such a recusal order
would cause with the Department’s ability to carry out its prosecutorial func
tions. This position finds support in the ABA’s new Model Rules of Profes
sional Conduct. Those rules specifically prohibit a lawyer who is a public
officer from participating “in a matter in which the lawyer participated person
ally and substantially while in private practice or nongovernmental employ
ment, unless under applicable law no one is, or by lawful delegation may be,
authorized to act in the lawyer’s stead in the matter.” Rule 1.11(c)(1), 52
U.S.L.W. 11 (Aug. 16, 1983). The comment states clearly that the paragraph
“does not disqualify other lawyers in the agency with which the lawyer in
question has become associated.” Id.
Although we would take the position that a court should not disqualify the
entire office, we would urge the AUSA to observe the restrictions upon
communicating with others that underlie the vicarious disqualification rule.
We have been told that the AUSA has reviewed FBI files regarding A and B.
We have no facts to indicate that he may have discussed confidential informa
tion with other members of the staff, but we underscore the importance of not
assisting in the case once a decision to disqualify has been made.
15
IH. Application off Camera 4 to Federal Officials
Several sources of authority could be viewed as imposing on the AUSA or
other Department of Justice attorneys the obligations of Canon 4 discussed
above. As members of the bar o f a state or the District of Columbia,12 Depart
ment lawyers may be subject to the ethical standards of the state bars, including
Canon 4. Both Arizona and Illinois have adopted the Model Code. See supra
note 1 and accompanying text. In addition, as representatives of the United
States in litigation, Department lawyers may be subject to Canon 4 or a similar
rule as adopted by the federal district courts as local rules. The local rules of the
United States District Court for the District of Arizona, for example, provide
that “the Code of Professional Responsibility, as set forth in Rule 29(a) of the
Rules of the Supreme Court o f the State of Arizona, shall apply to court
proceedings in the United States District Court for the District of Arizona.” D.
Ariz. R. 7(d) (1982). Finally, the Department’s Standards of Conduct exhort
Department attorneys to use the Model Code as a source of “guidance” for their
conduct. 28 C.F.R. § 45.735-1. Although we have never read this provision in
the Standards of Conduct to impose upon the Department’s lawyers obligations
that are not fully consistent with the performance of their official responsibili
ties, we must anticipate that the organized bar or the federal courts or both may
attempt to impose the restrictions of Canon 4 even in situations where we would not.
The imposition of conduct regulations by a state court or bar association
upon federal lawyers acting in the scope of their federal authority must be
assessed in light of the Supremacy Clause of the Constitution. See supra note 2.
The activities of the Federal government are presumptively free from state
regulation, unless Congress has clearly authorized state regulation in a specific
area. See Hancock v. Train, 426 U.S. 167 (1976). In the area of professional
conduct, Congress has directed that Justice Department attorneys must be
licensed and authorized to practice under the laws of a State, territory, or the
District of Columbia. See supra note 12. In prior interpretations of that require
ment, this Department has been willing to assume that Congress “intended that
the attorneys would be subject to reasonable conditions of continued bar
membership where those conditions are not inconsistent with the requirements
or exigencies of federal employment,” and that Congress could reasonably
have intended federal employees to be subject to “reasonable and established
ethical rules for the bar generally.” See Memorandum of the Department of
Justice, Re: “In the Matter of the Petition of the Board of Governors of the
District of Columbia Bar,” at 5 (Sept. 11, 1979). Nonetheless, bar rules that are
inconsistent with the requirements or exigencies of federal service may also
offend the Supremacy Clause.
12 D epartm ent o f Justice authorization and appropriations statutes routinely provide that the D epartm ent's
funds may not be used to pay the com pensation o f any person em ployed as an attorney unless that person is
duly licen sed and authorized to practice as an attorney under the law s of a state, territory, or the D istrict of
C olum bia. See, e.g.. Pub. L. No. 96-132, § 3 (a), 93 Stat. 1040, 1044 (1979); Pub. L. No. 95-624, § 3(a), 92
Stat. 3459, 3462 (1978); Pub. L. No. 95-86, § 202, 91 Stat. 419, 428 (1977); see also Pub L. No. 9 8 ^ 1 1 ,
§ 2 03(a), 98 Stat. 1545, 1558-59 (1984) (continuing the requirem ent of § 3(a) o f Pub. L. No. 96-132).
16
Whether the limitations of Canon 4, as imposed by a state bar, are a
significant enough intrusion into the authorized functions of this Department to
offend the Supremacy Clause would depend on the circumstances of the
AUSA’s case. On the one hand, there is the arguable congressional authoriza
tion for at least some state professional regulation of Department lawyers as
evinced by the language in the Department’s authorization statutes. In addition,
the attorney’s obligation to preserve client confidences traces its roots far
beyond the Model Code of Professional Responsibility, and may have implica
tions for the due process rights of the criminal defendant. Further, the
Department’s own regulations permit an employee’s supervisor to relieve an
employee from participation in a criminal investigation or prosecution if he
determines that a personal relationship exists between the employee and a
person or organization that is substantially involved or has specific and sub
stantial interest in the matter. 28 C.F.R. § 45.735-4. The Department’s own
practice, therefore, supports observance of the ethical guidelines in this instance.
On the other hand, the Department has a strong interest in pursuing its
prosecutions free from interference from any other governmental entity, state
or federal. The strength of this interest would depend upon the need for the
AUSA’s services in this particular operation. That he was hired as a Special
Assistant United States Attorney for the purpose of prosecuting alien cases
would suggest that his services in the obscenity prosecution are not indispens
able. This is a determination that must be made by officials more familiar than
we are with the circumstances of this particular investigation.
On balance, we believe that generally the extension of the Canon 4 obliga
tions to individuals who were not “clients” in the strict sense of the word would
not be in the Department’s interest. We believe in this case, however, that very
careful thought should be given to the broad application that courts have given
to the Canon 4 principles and a determination made regarding the relevance of
those interpretations to the AUSA’s situation. We believe the broad construc
tion of Canon 4 is not binding on the Department, assuming some overriding
interest on the other side, but that as a prudential matter, the better course may
be to protect the integrity of the prosecution by removing the AUSA from the
case. Although we can appreciate the AUSA’s interest in participating in the
case, we think that under these facts it would be reasonable, if perhaps incor
rect, for the public or the defendants to question the AUSA’s capacity for
independent judgment or his ability to preserve the confidences he may have
obtained as a defense attorney. As we have emphasized, however, this decision
should be made by Department officials who are in possession of more detailed
facts than we have been given and who are in a position to judge the AUSA’s
importance to the investigation and prosecution of these obscenity cases.
Conclusion
The many considerations, discussed above, that bear upon a disqualification
under these circumstances have led us to conclude that the AUSA probably
17
should not participate either in counseling agents involved in the investigation
of A and B or in the prosecution of A and B. The relationship between the
AUSA and A and B may not be close enough to establish that his participation
in the case would violate the Disciplinary Rule prohibiting the disclosure of
client confidences. However, it may nevertheless be sufficient to deprive A and
B of a fair trial or to create an appearance of impropriety. We cannot conclude
that, as a matter of law, the AUSA’s participation in the case could not provide
a ground for a disqualification order or an eventual attack upon any convictions
obtained. As a prudential matter, we therefore recommend that he disqualify
himself from the case.
R obert B. Shanks
Deputy Assistant Attorney General
Office o f Legal Counsel
18