1671
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| A lawyer acting as both Commonwealth's Attorney and city attorney obtains an indictment against a builder in a building inspection dispute. One of the lawyer's assistants interviews the building's owner to obtain information for the criminal prosecution. The owner sues the builder and the city's building inspector in a civil lawsuit.The lawyer faces a conflict in prosecuting the builder while advising the building inspector and representing the city's interests in the civil litigation (because the lawyer "likely would have discovered the facts and circumstances surrounding the builder's dealings with the building inspector which would likely be adverse to the defense of the building inspector and the interests of the City"). This conflict was not curable by consent, because it was "not obvious" that the lawyer could play both roles.The lawyer's resignation as City Attorney does not remove the conflict, since the lawyer still owes duty to the former clients (the city and building inspector).One of the lawyer's assistants may continue to represent the city upon becoming full-time City Attorney even though the assistant had interviewed the building's owner in connection with the criminal prosecution of the builder. The interview "did not create an attorney-client relationship nor expectation of confidentiality" and therefore does not bar this lawyer from being adverse to the owner in the civil litigation (the bar noted that "victims of crimes are not clients of prosecutors"). [Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.] |