( concluding the lower court did not abuse its discretion in rejecting the defendant ’ s motion to disqualify a prosecutor , noting the lower court found no “ close relation between the present case and the past representations ”).
If the attorney determines the new case and the prior case are the same or substantially related , Rule l . 9 ( a ) still allows the attorney to represent the new client if the former client consents in writing . In the context of a criminal case , however , the idea of obtaining consent to prosecute a former client is fraught with problems . As the Supreme Court of Texas Professional Ethics Committee noted , “[ to ] obtain the consent of the former client to criminally prosecute him requires full disclosure of the existence , nature and implications of the conflict of interest and the many possible adverse consequences of consenting to such a prosecution .” TX Eth . Op . 538 ( June 2001 ). Certainly , “ consent should not be obtained with an inappropriate expectation of leniency .” Id . The prosecutor should also keep in mind that “ there may be occasions where the lawyer should not even ask for the former client ’ s consent .” Id . “ Where a disinterested lawyer would conclude that the client should not agree to give the requested consent , the Rules discourage , if not prohibit , the lawyer from even asking for the former client ’ s consent .” Id : The Committee agrees with this analysis and urges extreme caution when seeking consent from a former client to prosecute him or her .
Subsection ( c ) of Rule 1.9 prohibits use of information relating to a former client to the disadvantage of the former client “ in the same or a substantially related matter except as these Rules would require or permit with respect to a client , or when the information has become generally known .” It also prohibits an attorney from revealing information related to the representation of the client except as the Rules permit or require . N . D . R . Prof . Conduct 1.9 ( c ). To avoid the disclosure of confidential information about the former client , the prosecutor would need to “ proceed cautiously , ignoring any fact known by the new prosecutor about the former client as a result of the former representation .” TX Eth . Op . 538 ( June 2001 }. Prosecutors have “ the responsibility to see that justice is done and not simply be an advocate .” Id . However , prosecutors are “ still obligated to act with competence , commitment and dedication on the State ’ s behalf .” Id .
The Supreme Court of Texas Professional Ethics Committee aptly explained the ethical conundrum that a state ’ s attorney would face in prosecuting a former client :
Adherence to the Rules places an impossible burden on an effective prosecutor and creates an almost certain probability that in the adversarial trial setting , confidentiality will be compromised . Similarly , to obtain and ensure protection , the objecting former client is forced to divulge the very same confidential information he seeks to prevent from disadvantageous use , thus defeating the purpose of the rules . These conflicting obligations impose conflicting duties on both the prosecutor and the former client and thus requires prohibition of this practice , absent the former client ’ s consent .
Even if consent from the former client is obtained to prosecute him , the Committee believes that the new prosecutor ’ s use in evidence , in a new criminal proceeding of a prior conviction in which she was defense counsel , for purposes of impeachment , or for use against a former client as character evidence or punishment evidence is prohibited .
TX Eth . Op . 538 ( June 2001 ).
The American Bar Association ( ABA ) standards go even further , completely prohibiting the prosecution of a former client . According to the standards , a “ prosecutor should not be involved in the prosecution of a former client ” and “ should not use information obtained from that representation to the disadvantage of the former client .” ABA Criminal Justice Standards , Prosecution Function , Standard 3-l . 7 ( d ), 4th ed . 2017 .
The New York · State Bar Association Committee on Professional Ethics warned that prosecuting a former client could create an appearance of impropriety :
Because of the broad discretion with which the district attorney is vested , prosecution of persons that he has personally represented in private practice immediately prior to the assumption of his new office presents an unacceptably high risk that the prior representation will bias the manner in which he will discharge the functions of his office and , at the very least , may give rise to speculation concerning the propriety of his motives . Such speculation , or a reasonably high probability of such speculation , would understandably place unwarranted pressure upon the district attorney in the performance of his official duties . The public ’ s confidence in the integrity of the district attorney ’ s office should not needlessly be so tested . Its confidence in the proper administration of justice should not be compromised or unnecessarily put at risk .
NY Eth . Op . 492 ( Sept . 13 , 1978 ).
The Florida Supreme Court has also recognized the danger of negative public perception when a prosecutor brings charges against a former client . In Reaves v . State , a state ’ s attorney prosecuting the defendant for murder had previously represented the defendant as an assistant public defender on grand larceny charges . 574 So . 2d 105 , 106-07 ( Fla . 1991 ). The defendant appealed his murder conviction , contending that “ many of the issues involved in the present case - particularly mitigating factors during the penalty phase - were similar to issues raised in this prior criminal proceeding .” Id . at l 06 . The defendant claimed that “ an appearance of impropriety was created that demanded the disqualification of [ the ] prosecutor .” Id . The Court agreed , holding that reversal of the defendant ’ s conviction was necessary “[ t ] o implement these ethical considerations and prevent the perception or actuality of a breach of confidentiality .” Id . at 107 .
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