Advisory Opinion No. 1994-17

ADVISORY OPINION NO.  94-17

Application Of Conn. Gen. Stat. §1-84b(b)
To Former State Prosecutor

The petitioner has asked whether, under the post-state employment restrictions of the Code of Ethics for Public Officials, a former prosecutor may, within one year of leaving state service, represent a criminal defendant charged in the Judicial District to which the prosecutor was formerly assigned.

The Division of Criminal Justice is an executive department agency, charged with the investigation and prosecution of all criminal matters in the superior court.  See Conn. Gen. Stat. §51-276.  The Criminal Justice Commission appoints a state’s attorney for each judicial district, who acts therein as attorney in behalf of the state, and as many assistant state’s attorneys and deputy assistant state’s attorneys for each judicial district as the criminal business of the court, in the opinion of the chief state’s attorney, may require.  See Conn. Gen. Stat. §51-278(b)(1)(B).  The various categories of state’s attorneys are state employees within the meaning of Conn. Gen. Stat. §1-79(m) and will be referred to collectively herein as “prosecutors.”

Conn. Gen. Stat. §1-84b(b) provides as follows:

No former executive branch…public official or state employee shall, for one year after leaving state service, represent anyone, other than the state, for compensation before the department, agency, board, commission, council or office in which he served at the time of his termination of service, concerning any matter in which the state has a substantial interest.

In State Ethics Commission Advisory Opinion No. 86-11, 48 Conn. L.J. No. 18, p. 1D (October 28, 1986), the Commission held that a former employee of the Division of Criminal Justice may, within one year, represent a criminal defendant before a State court.  The Commission reasoned that the Division of Criminal Justice, not the court which would hear the matter, is such an individual’s “former agency” within the meaning of §1-84b(b).  In addition, in Declaratory Ruling 92-B, Legislator/Attorney Appearing Before a §1-84(d) Agency, February 5, 1992, the Commission noted that the Judicial Department is “a neutral party…where the possibility of undue influence has not been deemed to be problematic by the General Assembly.”  In response to the petitioner’s inquiry, the Commission, for the same reasons, now finds that no greater restrictions apply to a former prosecutor’s appearance before the Judicial District to which he or she was assigned than to any other.

Nevertheless, the Commission, in Advisory Opinion No. 86-11, noted that certain elements of a criminal proceeding, such as negotiating a plea or a sentence recommendation, are within the jurisdiction of the Division of Criminal Justice, not the court.  The Commission held that with respect to action by the Division of Criminal Justice, the representation of a criminal defendant could not be conducted “in a manner obvious to the Division.”  As a practical matter, therefore, a former prosecutor who wishes to represent a criminal defendant in any state court, within one year after leaving state service, will be precluded from negotiating with the prosecutor or otherwise interacting with the Division of Criminal Justice.  Representation of a client under such circumstances, although permitted under the Code of Ethics for Public Officials, will be problematic at best.  See, for example, the Rules of Professional Conduct, particularly Rule 1.11, Successive Government and Private Employment and Rule 1.9, Conflict of Interest:  Former Client.

By order of the Commission,

R.E. VanNorstrand
Chairperson