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 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. __.
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 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
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