ETHICS OPINION 308-1933

NUMBER 308 1933

Question. In a jurisdiction where the prosecuting attorney is permitted to practice law privately, an indictment is found by the grand jury of that jurisdiction against X, charging him with a felony, to wit; assault in the second degree. This indictment is still undisposed of. The trial of it had been adjourned several times. It was again on the calendar a short time ago. About a week before that date of trial, X, the defendant, sustained personal injuries in an accident not in any way connected with the crime for which he was indicted. A doctor’s certificate was presented showing his inability to appear for trial, and thereupon it was adjourned to the next term. Shortly thereafter, and while the indictment still remained undisposed of, the prosecuting attorney, as attorney for X, commenced an action to recover damages for the personal injuries so sustained.

Is it proper professional conduct for the prosecuting attorney, while the criminal action is pending against X, to commence, as attorney for X, an action to recover damages for personal injuries sustained by the latter?

Answer. In the opinion of the Committee, the prosecuting attorney cannot properly accept such employment. To do so would create in him an interest in the client which would tend to conflict with the duties of his public office.