LEO: Conflict of Interest - Commonwealth's  LE Op. 1043

Conflict of Interest - Commonwealth's Attorney.

February 8, 1988

You have inquired of the Committee as to whether or not you may ethically

proceed, as Commonwealth's Attorney, to prosecute a defendant who at one

time was a client of your employer in regard to the same matter for which

that defendant has been indicted and will be tried.

This case is governed by the opinions rendered by this Committee in LE

Op. 993, LE Op. 940, and LE Op. 240, interpreting Canons 4 and 5, DR:5-

105(D). See also, Silver Chrysler Plymouth v. Chrysler Motor Corp., 518

F.2d 751 (2d Cir. 1975). If you were not involved with the plaintiff's

case, nor if you have any confidential information relative to the case as

a result of your earlier employment, then the presumption that you

acquired confidential information based on your relationship with the

former firm would be rebutted. It would therefore not be a violation of

the Canons for you to proceed.

Please be advised that this opinion is advisory only, and is solely based

on the facts you have presented and is not binding on any court or

tribunal. As a result, a differing opinion may be reached by a trial or an

appellate court impressed as much by constitutional limitations as ethical

ones. In that sense, in the event the trial of the defendant might be

considered at some time to have been prejudiced as a result of your

prosecution, it could be imprudent to pursue the prosecution. The

Committee directs your attention to Canon 7, and in particular, DR:7-101(

A)(3) and (B)(2).

Committee Opinion February 8, 1988