Oct. 19, 2022 – It can happen during the career of an attorney practicing criminal law: the opportunity to switch sides. But what does a defense attorney need to know about potential conflicts when running for district attorney?

Question

I have practiced criminal defense for almost 20 years. The district attorney in my county, with whom I have had a good relationship, is retiring. I believe my perspective as an experienced defense lawyer would make me a good prosecutor and I would like to run for election as district attorney.

I have heard varying opinions from my colleagues about what, if any, conflicts I might have if I run for district attorney while continuing my criminal defense practice.

Would the fact that I am a criminal defense lawyer create conflicts for me in simply running for the position of elected district attorney?

Answer

Preliminarily, it is important to note that this question asks whether or not there are conflicts arising in announcing and running for district attorney, not what conflicts might arise if elected district attorney.

This question is addressed in Wisconsin Ethics Opinion EF-22-01, which generally discusses conflicts that arise when “side switching” in criminal practice. With respect to the question posed, the opinion states:

A defense lawyer’s decision to run for district attorney presents a personal conflict for the lawyer. Partisan elections are often contentious, and a common theme is which candidate would make the community safer, often by expanding prosecution and seeking harsher penalties for those convicted. Challengers often criticize the incumbent as being insufficiently punitive in their practices and policies.

At the same time, the role of defense counsel is to seek the least punitive resolution of charges for the client, a resolution that a defense lawyer candidate may claim makes the incumbent unfit for office. Such a dynamic – seeking a lenient resolution for clients while simultaneously criticizing lenient dispositions while campaigning – is likely to materially limit a candidate’s ability to effectively represent their clients.

The defense lawyer’s conflict in the electoral context arises when they announce their candidacy.At this point their personal interest in a successful campaign is directly at odds with their clients’ interest in maintaining a positive relationship with the prosecutor and receiving a favorable case resolution. Further, by announcing their candidacy, the defense attorney is actively seeking employment with the client’s opponent.This conflict affects all of the defense lawyer’s criminal defense clients, whether the cases are venued in the county in which the candidate is seeking office or elsewhere.

The defense lawyer-candidate may only continue representation of criminal defense clients if they reasonably conclude their candidacy will not impair their representation and each client provides informed consent in a writing signed by the client.

(footnotes omitted)

There are a couple of important points in this scenario.

First, the conflict arises when the defense lawyer announces their candidacy, which is tantamount to actively seeking employment with an opposing law firm (see also Wisconsin Ethics Op. EF-19-01).

Second, the conflict arises with respect to every criminal defense client anywhere in the state because, as the opinion notes in footnote 7:

(f)or purposes of analysis under the disciplinary conflict of interest rules, the committee considers the district attorney’s office to be one statewide office with multiple locations. See Wisconsin Ethics Formal Ethics Opinion EF-11-02.

This means that upon announcing, the candidate for district attorney must inform all of their criminal defense clients and obtain written and signed informed consent to the conflict, or withdraw from the matters.

Last, because this is a personal interest conflict of the lawyer, pursuant to SCR 20:1.10(a)(1) the conflict is not imputed to other lawyers in the firm.

EF-22-01 answers this question and provides a comprehensive discussion of the responsibilities under the disciplinary rules for any lawyer seeking to transition from criminal defense to prosecution or vice versa.