Advisory Opinion No. 1995-9
Restrictions Affecting
Attorneys Formerly Employed
By The Division Of Criminal Justice
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 Assemblys 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. __.
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 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 clients 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 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 By order of the Commission, David Nassef
Chairperson