Ethics: Advisory Opinion No. 1995-9

Advisory Opinion No. 1995-9
Advisory Opinion No. 1995-9

 Application Of Amendments To Post-State Employment
Restrictions Affecting Attorneys Formerly Employed
By The Division Of Criminal Justice

Connecticut General Statutes 1-84b(b) provides, in pertinent part, that 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 his or her former agency, concerning any matter in which the state has a substantial interest.  Applying such prohibition to former state prosecutors, the State Ethics Commission, in an opinion issued July 29, 1994, held that for one year after leaving state service, a former prosecutor may not negotiate with any representative of the Division of Criminal Justice.  See State Ethics Commission Advisory Opinion No. 94-17, 56 Conn. L.J. No. 11, p. 4B (September 13, 1994).  In a November 1994 Special Session, the General Assembly passed House Bill No. 8502, later codified as November Special Session, Public Act No. 94-1, which amended Conn. Gen. Stat. 1-84b(b) by adding the following language:

The provisions of this subsection shall not apply to an attorney who is a former employee of the Division of Criminal Justice, with respect to any representation of a criminal defendant in a matter under the jurisdiction of a court.  (Emphasis added.)

A review of the debate which preceded passage of House Bill 8502 reveals the General Assembly’s intentions in including the language “in a matter under the jurisdiction of a court” and why, in fact, the legislature rejected an amendment to the bill which would have deleted such language:

Once [matters are] under a court jurisdiction…you would have a third party, that is, the judge, sort of looking over any representation that might be made by a former prosecutor in dealings with their former colleagues who are now the current prosecutors.  See comments of Rep. Miles Rapoport, __ H.R. Proc. Part __, November 1994 Special Session, p. __.

The petitioner has asked what type of client representation a former prosecutor might wish to undertake which would involve contact with the Division of Criminal Justice, yet fall outside of the jurisdiction of a court and, therefore, be prohibited during the first year after leaving state service.

Persons suspected of engaging in criminal activity may be arrested without a warrant if, for example, they are caught “in the act,” if the arresting officer is acting upon “the speedy information of others” (See Conn. Gen. Stat. 54-1f), or “upon reasonable information” that the arrestee has been charged, in a court, with a serious crime (See Conn. Gen. Stat. 54-170).  An out-of-state officer may make an arrest in Connecticut, without a warrant, if “in fresh pursuit.”  See Conn. Gen. Stat. 54-146.  Except in extremely rare instances (i.e., an immediate obvious case of mistaken identity), the suspect will not be released by the arresting officer without a court appearance or a court date.  The Commission therefore concludes that persons who have been arrested, with or without a warrant, are “criminal defendants,” and their defense and prosecution are matters “under the jurisdiction of a court,” within the meaning of Conn. Gen. Stat. 1-84b(b), as amended.

A prosecutorial official may request an arrest by bench warrant, which requires the signature of “the superior court or any judge thereof,” See Conn. Gen. Stat. 54-2A.  A judge, or the Governor, also may issue an arrest warrant pursuant to the Uniform Criminal Extradition Act, Chapter 964, Connecticut General Statutes.  The Commission concludes that a client who is the subject of either a bench warrant which has been signed by a judge or a warrant signed by the Governor or a judge pursuant to Chapter 964, whether or not an arrest has been effected, will be deemed a “criminal defendant” for purposes of House Bill 8502, and the client’s defense and prosecution will be deemed matters “under the jurisdiction of a court.”

A corollary to the foregoing is the conclusion that law enforcement activities or investigations which take place prior to an arrest or the issuance of a warrant are not matters ‘under the jurisdiction of a court.”  Consequently, the above limitations on contacting the Division of Criminal Justice will apply equally to investigations, including custodial interrogations, conducted by municipal police forces and state executive branch law enforcement authorities and to investigative grand juries convened pursuant to Conn. Gen. Stat. 54-47c.  Although the Superior Court judges are authorized to sit as grand jurors, alone or in a panel of three, the function of a grand jury is “investigatory and nonadjudicative.  An inquiry is conducted and a report is made to the court.”  State v. Moynahan, 164 Conn. 560, 566 (1973).  The State Ethics Commission must therefore concur with Rep. Richard Tulisano’s conclusion that grand jury investigations are not “matters under the jurisdiction of a court,” and that former prosecutors, for one year, are still prohibited from calling a state’s attorney to discuss a grand jury investigation to “determine whether or not…the proposed client is a targeted defendant, whether or not they’re just a witness, [and] discuss the parameters of everything that’s going on.”  See Comments of Rep. Tulisano, __ H.R. Proc. Part __, November 1994 Special Session, p. __.

The Commission acknowledges that a criminal defendant, having been arrested and charged with one or more offenses, may be under investigation for, but not yet formally charged with, related offenses.  A strict application of 1-84b(b), as amended, would require a former prosecutor to recuse him- or herself from discussions with the Division of Criminal Justice with respect to alleged related offenses for which the client had not yet been arrested.  However, in recognition of the constitutional implications, and practicalities, the Commission will consider such alleged related offenses to be matters “under the jurisdiction of a court” within the meaning of 1-84b(b), as amended.

Finally, the 1994 amendment in question addresses only representation “of a criminal defendant.”   When an earlier draft of this opinion was sent to the Chief State’s Attorney for comment, however, he pointed out that essentially analogous representation of non-criminal defendants, e.g., witnesses and victims, was being unnecessarily restricted.  The Ethics Commission concurred with this analysis.  Specifically, the Commission viewed these additional categories of representation as being unobjectional as long as the matter was “under the jurisdiction of a court”, as delineated supra.  Consequently, the Commission proposed to the 1995 session of the General Assembly that such representation be legally sanctioned by deleting the words “of a criminal defendant” from 1-84b(b).  This proposal was passed by the Legislature, signed by the Governor and took effective July 1, 1995.  P.A. 95-144.

By order of the Commission,

David Nassef

Content Last Modified on 9/7/2005 8:01:11 AM