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 of his prior 

representation and indirectly paid the attorney's legal fees, unless the attorney’s participation 

is essential to the conduct of the Department’s law enforcement operation.

Under the Supremacy Clause of 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 e m o r a n d u m O p i n i o n f o r t h e D i r e c t o r ,

E x e c u t i v e O f f i c e f o r U n i t e d S t a t e s A t t o r n e y s

We have been asked to provide advice for a Special Assistant United States 

Attorney (the AUSA) concerning his potential prosecution of suspected pornographers 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 activity. 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 investigation and possible prosecution by the Department of Justice.

1
Based on these facts, the AUSA, a member of the Arizona Bar,1 has 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 ordinarily 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

1 The ALISA is also a m em ber o f the Illinois Bar. Because our conclusions are based on general principles, 

we do not anticipate that any different result would obtain under Illinois law. Illinois has adopted the ABA 

M odel Code with no relevant amendments. See II0A III. Ann. Stat. foil. I 772 (Smith Hurd Supp. 1983).

2 The Suprem acy Clause provides that the “C onstitution, and Laws o f the United States which shall be made 

in Pursuance th e re o f. . shall be the supreme Law of the Land; and the Judges in every State shall be bound 

thereby, any Thing in the C onstitution or Laws o f any State to the Contrary notwithstanding.” 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 protections 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, terminating only upon consent of the client. Model Code EC 4-6. The current Model 

Code contains no procedural disqualification provision for one whose subsequent 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 disqualification 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, which provides that “a lawyer should exercise independent professional judgment on behalf of a 

client,” does contain a disqualification provision. DR 5 - 105(A) requires a lawyer to decline proffered 

employment if the exercise o f his independent professional judgment is likely to be adversely affected by a 

conflict of interest. The purpose of this provision is primarily to protect the lawyer from competing client 

interests, rather than to protect the confidentiality of client information. American Bar Foundation, Annotated

Code o f Professional Responsibility 228 (1979). Although the provision is arguably relevant here, its 

principal application is in simultaneous multiple client representation. Id.

4 This determination is based, in part, on EC 4 -5, which states that “no employment should be accepted that 

might 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 Fourteenth 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 presumption 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 asserting 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 of Interests: Representation of

Interest Adverse to that of 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 inference that as a result of his former representation of the defendant’s father-inlaw 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 of 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 relationship that the AUSA maintained with Corporation A, Mr. B and Subsidiary C, 

who financed and participated in the AUSA’s representation of criminal defendants. “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 “community 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 attomeyclient 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 The C ode defines “confidences” as “inform ation protected by the attom ey-client privilege under applicable laws,” and “secrets” as “other information gained in the professional relationship that the client has 

requested be held inviolate or the disclosure o f which would be embarrassing or would be likely to be 

detrim ental to the client.” M odel Code DR 4-1 0 1 . The ethical obligations o f an attorney consequently 

encom pass not only privileged information but also other information.

6 If the com m unications had included confidences or secrets, and no consent had been given by XYZ, then 

either A or B would have been included in the client relationship, or the AUSA might have breached his 

obligation to protect the confidences of XYZ under DR 4-101(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 because, 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 attomeyclient 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 Model Code discourages third-party fee arrangements. It permits such an arrangement only with 

consent of the client after full disclosure, and charges the attorney with the responsibility to ensure that his 

independent judgm ent is not impaired thereby. Model Code DR 5-107, EC 5-23. The Model Code does not 

make clear, however, what obligations, if any, the lawyer 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, irrespective of a formal attomey-client relationship.

B. Alternative Basis fo r Obligation of 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 privilege. 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, conveyed confidences. Without seeking to identify an “attomey-client” relationship between the prosecutor and the accused, the court considered whether the 

prosecutor’s former “professional relations” and “dealings” with the accused

8 The M odel Rules o f Professional Conduct explain that “[t]he confidentiality rule applies not merely to 

m atters com m unicated in confidence by the client but also to all information relating to the representation

Rule 1.6 com m ent, 52 U.S.L.W . 6 (Aug. 16, 1983) (emphasis 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 prosecutor 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 information 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). Similarly, 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 prosecuting 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 confidential information inconceivable); Dunn v. State, 264 So. 2d 823, 825 (Miss. 

1972) (no disqualification on account of prior discussion with defendant regarding 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 benefactor 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 attomeyclient relationship for purposes of triggering inquiry into the potential conflict,” 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 information or the fact that others share the knowledge." Model Code EC 4-4 (emphasis added). The ethical precept is not nullified even if all confidential information 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
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 substantiality 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 delineated 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 XYZ were brought under state law and the proposed conspiracy charges will 

be based on federal law, there would undoubtedly be a significant similarity of legal issues.

C. Substantial Relation Between Former and Subsequent Matters

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 relationship. We believe, therefore, that very careful consideration must be given to 

whether a court would find a substantial relation between the former representation 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 prosecution 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 representations 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 defendant 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.

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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 prohibiting 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 disqualification 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 disqualification 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 associ13
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).10 This imposition of a disability upon the entire “firm” — a term not defined in the Model 

Code11 — is referred to as “vicarious disqualification” or “imputed knowledge.” 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 organizations 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 organizations, 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 imputation 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 Arizona, however, DR 5 - 1 05(D) has a different scope. It appears to require vicarious 

disqualification only w hen an attorney has been recused because o f a conflict o f interest (Canon S) rather than 

the risk o f disclosing client confidences (Canon 4). 17A Ariz. Rev. Stat. Ann., S. Ct. Rule 29(a), DR 5 - 

105(D) (1983 Supp.)- There is as yet no case law explaining the difference in application between the Model 

Code and the Arizona amendment.

11 T he M odel R ules of Professional Conduct define “firm" as including “lawyers in a private firm, and 

lawyers em ployed in the legal department o f a corporation or other organization, or in a legal services 

organization.” 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 thenDistrict 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. Similarly, 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; practical, 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 functions. This position finds support in the ABA’s new Model Rules of Professional Conduct. Those rules specifically prohibit a lawyer who is a public 

officer from participating “in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, 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 information 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.

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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 of a state or the District of Columbia,12 Department 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 of 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 responsibilities, 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 requirement, 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 Department's 

funds may not be used to pay the compensation of any person em ployed as an attorney unless that person is 

duly licensed and authorized to practice as an attorney under the laws of a state, territory, or the District of 

Colum 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 , 

§ 203(a), 98 Stat. 1545, 1558-59 (1984) (continuing the requirem ent of § 3(a) of 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 authorization 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 implications 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 substantial 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 indispensable. 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 obligations 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 construction 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 incorrect, 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 o b e r t B . S h a n k s

Deputy Assistant Attorney General

Office of Legal Counsel

18