Maine Lawyers Applying for Prosecutor Jobs Can Keep Clients

Clients must consent to continued representation if their criminal defense lawyer is waiting to hear about an application to work as a prosecutor and has a personal conflict, a Maine ethics opinion said.

“As the practice of law has become increasingly mobile, and attorneys continue to practice while seeking new job opportunities, it has become common for active criminal defense counsel to apply for State or federal prosecutorial positions,” according to a June 17 opinion by the Professional Ethics Commission of the state’s bar oversight board.

But lawyers are prohibited from representing clients if their personal interests would get in the way of their duty of loyalty to their clients, the opinion said.

“Those personal interests can include efforts to secure new employment that, if accepted, would obviously prohibit continued representation,” it noted.

However, an ABA ethics opinion said that “the mere prospect of a conflict” when a lawyer is seeking employment with opposing counsel doesn’t preclude representation, the Maine opinion noted.

It also referenced a D.C. Bar opinion that it found instructive on the issue of whether a lawyer has a personal conflict. It said that there are two factors to consider: whether the lawyer has a “material and active role” in the client relationship and whether the lawyer and the potential employer are mutually interested in the prospect.

If there’s a personal conflict, professional conduct rule 1.7 allows lawyers to continue representing a client if the lawyer reasonably believes it’s possible to provide “competent and diligent” representation and the client gives written, informed consent to the representation, the Maine opinion said.

When a client doesn’t agree to the continued representation after a lawyer discloses the conflict, the lawyer has to either withdraw the job application or withdraw from representing the client, the opinion concluded.

The opinion is Bd. of Overseers of Bar, Opinion No. 222, 6/17/20.