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