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OBA Ethics Counsel

Ethics Opinion No. 222

Adopted November 15, 1963

INQUIRY

A member of the Bar has made the following inquiry:

"May an attorney who as a member of the staff of the public prosecutor assisted in the prosecution of a defendant who was acquitted on the grounds of insanity and who in behalf of the State resisted such defense, upon return to private practice accept employment by the former defendant in an action for restoration to competency?"

OPINION

Canon 36 of the Canons of Professional Ethics provides in part as follows:

"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."

Compliance with this Canon would prohibit the former State's Attorney from representing this defendant in defense of the alleged crime for which he originally attempted to secure conviction. It might appear that having once resisted commitment of this defendant, he should now not be precluded from being employed by the defendant to procure restoration to competency. However, it is felt that, although this is a close question, compliance with Canon No. 36 as construed by the Committee on Professional Ethics of the American Bar Association precludes the former State's Attorney from accepting employment in this instance.

In Opinion No. 134, the American Bar Association Committee states:

"A lawyer retiring from public employ cannot utilize or seem to utilize the fruits of the former professional relationships in subsequent private practice involving a matter investigated or passed upon either by himself or others of the public legal staff during the time he was identified with it. ..."

In this instance, the former State's Attorney in opposing the commitment of the defendant may have acquired information which he could utilize in connection with the restoration proceedings. Even though a restoration proceeding is sometimes an almost ex parte proceeding, the burden of opposing such restoration might well fall upon public officials, and the former State's Attorney would find himself not only in violation of Canon 36, but possibly in violation of Canon 6 which prohibits the representation of adverse interests.