Formal Opinion 132.
(1965)
Judges, Prosecuting Attorneys Handling Civil Cases

Our opinion has been requested as to the propriety of a justice of the peace, police judge, prosecuting attorney or city attorney who has tried or prosecuted a defendant in a traffic case then representing a plaintiff in a claim or civil action against the same defendant arising out of the same traffic occurrence.

The question posed has obvious implications for attorneys who practice in rural areas and hold part-time judicial or prosecuting positions.

Canon 36 of the Canons of Professional Ethics provides:

"A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.

"A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."

While Canon 36 refers to a situation concerning retirement from judicial or public employment, in our opinion it applies with equal authority to the part-time judge or prosecutor before retirement. This conclusion finds support in Opinions 110 and 135 issued by the Committee on Professional Ethics of the American Bar Association.

ABA Opinion 110 holds it was not proper for a municipal judge to try a defendant for criminal nonsupport of minor children and also represent the defendant’s wife in efforts to enforce the alimony provisions of the divorce decree. The committee’s opinion concluded:

"The situation is well calculated to give the impression that the lawyer was using his judicial office and power as an instrumentality for promoting the interest of his client, and such conduct, of course, must be disapproved."

ABA Opinion 135 holds it improper for a prosecuting attorney, who has investigated an automobile accident in order to determine whether a prosecution is warranted, to thereafter represent any of the parties involved in the accident in a civil action against the person concerning whom the investigation was made. Under the facts involved in ABA Opinion 135, the prosecutor had determined there was no criminal responsibility. The committee assumed that the prosecutor, in deciding against criminal responsibility, had acted in entire good faith and without contemplation of employment in a subsequent civil action. Nevertheless, the committee points out that in the course of an investigation by a prosecutor in the exercise of official authority, information may be obtained from persons, including the potential tort feasor defendant, who may feel under a sense of coercion out of respect for the prosecutor’s authority, and the prosecutor should not be permitted to benefit or appear to benefit in his private practice by information gained while performing his duties as a public official. The committee concluded:

"The attempted double role is fraught with many conceivable inconsistencies and antagonisms. Public duty and fealty to private client, involving subordination of the interest of one or the other, may embarrassingly challenge the conscience of the lawyer who attempts to serve both."

We endorse the reasoning of the cited opinions as correctly interpreting the spirit and meaning of Canon 36. It is our opinion that it is not proper for a justice of the peace, police judge, prosecuting attorney or city attorney who has tried or prosecuted a defendant in a traffic case to then represent a plaintiff in a claim or civil action involving the same traffic occurrence against the same defendant.

[See RPC 1.11]