A recent Maine professional ethics opinion lets law firms lend associates to local district attorney offices, subject to certain conditions, in a win-win scenario for firms and the D.A.'s offices.
“If properly executed, the ‘lawyers on loan’ principle serves as one model to achieve important goals sought by firms and prosecutors’ offices alike,” the Board of the Overseers of the Bar’s Professional Ethics Commission wrote in its March 13 opinion.
District attorney offices throughout the country have limited legal resources while law firm associates often seek more legal experience. The commission’s opinion takes a stab at solving these unfilled needs.
The opinion was prompted by a question to the committee about whether this scenario was feasible.
The committee acknowledged that this type of arrangement does happen at some Maine law firms and that the associate does the work of a “typical” assistant district attorney, prosecuting criminal and civil infraction matters for a “short period of time” during which the firm pays the associate’s salary.
A big obstacle to this type of arrangement are conflict of interest analyses. A “robust conflict of interest analysis” is needed for a transition from private practice to government work and again when the lawyer returns to private practice, the opinion said.
Ethical rules concerning conflicts of interest involving current and former clients, as well as special conflicts of interest of former and current government employees all come into play, the opinion said. Written, informed consent is needed from the district attorney or attorney general for an associate to participate in a matter in which they participated personally or substantially while in private practice, it said.
And the loaned associate can’t conduct a case against any person whom they or their firm represents or previously represented as a client, the opinion said.
The associate’s firm also has to be mindful during the associate’s absence, it said. The law firm can’t knowingly represent a client if the “loaned” associate would be prohibited from doing so because of duties to current or former clients unless that affected client gives informed consent, the opinion said.
Once the associate returns to the firm, there are additional ethical obligations to be conscious of, it said.
The associate can’t represent a person the associate once prosecuted in a subsequent civil action against the government concerning the same transaction or in any matter where the lawyer was so involved that “the subsequent representation can justly be regarded as changing sides,” it said.
Furthermore, the associate needs written, informed consent from the D.A.'s office to represent a client in connection with a matter in which the associate participated “personally and substantially,” the opinion said.
As a final note, the opinion pointed out that it’s the responsibility of a law firm’s leaders to make sure the firm has policies in place that provide “reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”
The opinion is Bd. of Overseers of Bar, Opinion No. 221, 3/13/20.