[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

that provided, “All personnel of this law firm are under strict written instruction not to discuss or reference the matter
involving [x] with [the screened lawyer]” not adequate because it did not include the prospect of termination or
disciplinary proceedings for violators.
27. See, e.g., In re Guaranty Ins. Serv., Inc., 310 S.W.3d 630, 632 (Tex. App. 2010) (law firm whose conflictsscreening
procedures were “thorough” and “exemplary” but failed to reveal that a newly hired paralegal had worked on
the case while employed by counsel for the opposing party, disqualified; “[a] firm’s screening procedures, however
thorough, must actually be effective in order to rebut the presumption of shared information.”).
1. The federal government employed about 34,000 lawyers, state governments about 37,000, and local governments
about 50,000 in 2011. Together, these lawyers account for about 10 percent of all U.S. lawyers. See Bureau of Labor
Statistics, Occupational Employment and Wages, May 2011: Lawyers, available at
http://www.bls.gov/oes/current/oes231011.htm (last visited Oct. 25, 2016).
2. MR Scope [18].
3. MR 1.12 generally parallels MR 1.11 and, together with the Code of Judicial Conduct, forms the primary source
of rules that regulate the conduct of judges, arbitrators, and mediators. We explore issues of judicial ethics in Chapter
16.
4. Richard W. Painter, Getting the Government America Deserves: How Ethics Reform Can Make a Difference 121-122
(Oxford U. Press 2009).
5. See D.C. R. Prof. Conduct 1.6(k) (2017) (“The client of the government lawyer is the agency that employs the
lawyer unless expressly provided to the contrary by applicable law, regulation, or order.”).
6. See, e.g., Granholm v. PSC Mich. Pub. Serv. Comm’n., 625 N.W.2d 16 (Mich. App. 2000) (when the Attorney
General is a party to litigation against a state agency, which is entitled to representation by the attorney general’s office,
dual representation creates a conflict of interest that must be remedied by appointment of an independent special
assistant attorney general for the State agency); EPA v. Pollution Control Bd., 372 N.E.2d 50 (Ill. 1977) (where
attorney general is not an actual party, he may represent opposing state agencies in the dispute).
7. MR 3.8, Comment [1].
8. Berger v. United States, 295 U.S. 78, 88 (1935).
9. See D.C. R. Prof. Conduct 1.6, Comment [39] (2017); D.C. Op. 313 (2002) (whether former Navy JAG lawyer
now can continue to represent same defendant in postconviction proceeding in private practice);
10. RLGL § 97, Comment c.
11. The U.S. Justice Department administers its regulations through its Office of Professional Responsibility and
issues annual reports about the sources and outcomes of its investigations. See U.S. Department of Justice Office of
Professional Responsibility, Annual Report (2016) available at https://www.justice.gov/opr/file/881211/download (last
visited Sept. 22, 2017).
12. 18 U.S.C. §§ 203, 205 (2012).
13. MR 3.8, Comment [1]; ABA, Standards for Criminal Justice: Prosecution Function and Defense Function, 3-1.2(c)
(3d ed. 1993).
14. MR 3.8(d) recognizes (and expands) the constitutionally required rule of Brady v. Maryland, 373 U.S. 83
(1963). See ABA Formal Op. 09-454; RLGL § 97(4) (requiring prosecutors and other government lawyers to “observe
applicable restrictions imposed by law”).
15. MR 3.3(a); RLGL § 97(3).
16. National District Attorney’s Association, National Prosecution Standards (3d ed. 2009), available at
http://www.ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.pdf (last visited July 9,
2017); United States Attorney’s Manual, Title 9-27.000, “Principles of Federal Prosecution” (2017), available at
https://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution (last visited Sept. 18, 2017).
17. Imbler v. Pachtman, 424 U.S. 409 (1976) (prosecutors who engage in quasi-judicial/advocacy roles such as
bringing criminal prosecutions and presenting evidence in court or to a grand jury are absolutely immune from civil
liability); Burns v. Reed, 500 U.S. 478 (1991) (prosecutors who engage in nonadvocacy/investigative or administrative
roles such as giving erroneous advice to police entitled to only qualified immunity for good-faith actions).
18. In re Field, 2010 WL 489505 (Cal.) (prosecutor who intentionally withheld key evidence in two cases, made
highly improper closing argument, and obtained evidence in violation of a court order suspended four years); In re
Stuart, 803 N.Y.S. 2d 577 (App. Div. 2006) (prosecutor who misrepresented location of critical witness to the court
suspended for three years); In re Peasley, 90 P.3d 764 (Ariz. 2004) (prosecutor who deliberately presented false
testimony disbarred for violating Rule 3.3); In re Paulter, 47 P.3d 1175 (Colo. 2002) (prosecutor who impersonated a
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