These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 51 - Government Attorneys
LEO NumTopicsSummaryDate
0574

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33-Office Sharing with Other Lawyers

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney and a criminal defense lawyer (who defends cases prosecuted by the Commonwealth's Attorney) may share library expenses as long as they are not in any other way affiliated, there is no other financial relationship between them and the library is not physically connected to either office.5/10/1984
0487

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4-Witness-Advocate Rule

9-Government Lawyer Conflicts

51-Government Attorneys

A Commonwealth's Attorney and an assistant are barred from testifying in an action in which the office is involved, because the Commonwealth's Attorney's office is subject to the same restrictions applicable to a private law firm. (9/3/82) [This LEO was presumably overruled by Rule 3.7(c), under which this disqualification is not imputed to the lawyer's firm unless there is an actual conflict of interest.]9/3/1982
1496

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31-Protecting and Disclosing Confidences and Secrets

51-Government Attorneys

A Commonwealth's Attorney argued that defense counsel should be obligated to notify the prosecutor or court when a client subject to incarceration has exhausted or abandoned appellate rights. Because such a disclosure could hurt the client, the defense counsel was under no duty to make such a revelation. 10/19/1992
1854

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

37-Settlements

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney cannot offer a plea agreement to a criminal defendant based on the testimony of a witness whose identity the Commonwealth Attorney insists that the defense lawyer refrain from sharing with the criminal client (because the ethics rules prohibit lawyers from requesting anyone other than clients and certain specified others to refrain from voluntarily providing information to an adversary). On the other hand, the Commonwealth's Attorney may offer a plea agreement based on a "nameless confidential informant." In discussing the defense lawyer's duties, the Bar explains that the defendant's lawyer might be able to withhold the confidential witness's identity and involvement if the defense lawyer "believes that the defendant has enough relevant information about the pertinent facts to make an informed decision" about accepting the plea agreement.10/5/2010
1266

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

51-Government Attorneys

A Commonwealth's Attorney has represented UMW strikers and has expressed public sympathy with them. The Commonwealth's Attorney also personally has an interest in a non-union coal mine. The Commonwealth's Attorney may not prosecute striking miners because of this personal interest in the matter. Also, the lawyer's earlier representation of the miners is substantially related to the possible prosecution. Consent would be impossible, because there is no identifiable public client from whom consent could be obtained. The Bar stated that "a lawyer and, in particular, one who is engaged in representing the public rather than individual clients, must be keenly aware of the admonitions within the Code of Professional Responsibility to avoid even the appearance of an impropriety; he must not place himself in a situation where his loyalties are or may be perceived as being divided." 6/14/1989
0540

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13-Marketing - Miscellaneous

51-Government Attorneys

A Commonwealth's Attorney may maintain a private law practice as long as no public communications mention both roles. 1/18/1984
1538

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

20-Government Official Conflicts

51-Government Attorneys

A Commonwealth's Attorney may not act in a quasi-judicial capacity involving a grievance when ten years earlier the lawyer (while in private practice) worked with the grievant in a related matter. 6/22/1993
0848

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

77-Communicating with an Individual Adversary

A Commonwealth's Attorney may not arrange for a criminal suspect to tape record telephone conversations with an uncharged suspect. A Commonwealth's Attorney may not communicate with an uncharged suspect through another suspect, without the uncharged suspect's lawyer's consent. [In LEO 1738, the Bar indicated that lawyers may secretly tape record telephone conversations in which they participate, but only in situations involving criminal or housing discrimination investigations or if the lawyers are protecting themselves from possible criminal action.]10/9/1986
0188

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney may not defend criminal cases in any court in which the Commonwealth Attorney prosecutes, but may do so in other courts depending on the proximity to courts in which the Commonwealth Attorney practices, the nature of the crime, the identity of the defendants and witnesses. A county, city or town attorney may not defend criminal cases involving ordinances from that jurisdiction, even if the lawyer has no responsibility for prosecuting violations of the ordinances. Such a lawyer may defend criminal cases in the jurisdiction's courts as long as: (1) the jurisdiction's ordinances are not involved and; the lawyer does not appear before the same jury panel in which the lawyer has prosecuted a matter.6/17/1982
1203

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney may not hire a private lawyer to represent the Commonwealth in collection cases if the lawyer will be representing criminal defendants in prosecutions by the Commonwealth's Attorney. The disqualification would extend to the entire firm.4/3/1989
0763

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9-Government Lawyer Conflicts

51-Government Attorneys

A Commonwealth's Attorney may not prosecute a defendant who was the attorney's client before the lawyer entered public service (and who is still represented by the attorney's former law firm). 1/29/1986
0636

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7-Family Conflicts

9-Government Lawyer Conflicts

51-Government Attorneys

A Commonwealth's Attorney may not prosecute a traffic charge against someone who is or might be a defendant in a civil case in which the plaintiff is represented by the Commonwealth Attorney's wife. 12/19/1984
0789

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

51-Government Attorneys

A Commonwealth's Attorney may not prosecute defendants whose lawyer represents the Commonwealth's Attorney in unrelated personal matters. 4/22/1986
0285

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9-Government Lawyer Conflicts

51-Government Attorneys

76-Trust and Estate Lawyers

A Commonwealth's Attorney may not represent the estate of the deceased in a wrongful death action when the lawyer participated in a hearing involving criminal charges against the potential defendant. 1/30/1978
0416

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

A Commonwealth's Attorney may not send letters congratulating jurors or grand jurors for doing a good job. 5/21/1981
1043

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5-Lawyers Changing Jobs

9-Government Lawyer Conflicts

51-Government Attorneys

A Commonwealth's Attorney should not prosecute a defendant who was a former client of the Commonwealth Attorney's former law firm on the same matter, although the Commonwealth's Attorney could rebut the inference of confidential knowledge by proving that the Commonwealth's Attorney did not work on the case while at the former firm. 2/8/1988
0288

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51-Government Attorneys

A Commonwealth's Attorney should pursue a valid criminal case even if the victim wants it dismissed.1/30/1978
0205

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20-Government Official Conflicts

51-Government Attorneys

A Commonwealth's Attorney who advised a Board of Supervisors about a permit may participate as a member of a Commission deciding whether to revoke the permit. 5/18/1970
1465

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

51-Government Attorneys

74-Representing Associations

A Commonwealth's Attorney who is a member of a homeowner's association may provide information to the homeowner's association about trespassers on common property owned by the association, because the Commonwealth's Attorney's personal interest creates only a de minimis conflict. 6/9/1992
1114

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9-Government Lawyer Conflicts

10-Former Government Lawyer Conflicts

51-Government Attorneys

A Commonwealth's Attorney who unsuccessfully sought the issuance of a reckless driving warrant against a driver may not represent plaintiffs in a civil action against the driver, because the lawyer has had "substantial responsibility" for a related matter while a public employee. 7/13/1988
1533

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51-Government Attorneys

A Commonwealth's Attorney's arrangements with criminal defendants raised a legal issue outside the Bar's jurisdiction. 6/30/1993
1713

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51-Government Attorneys

A Commonwealth's Attorney's office may not administer a local alcohol safety program because the program is paid for in part by private donations that could be seen as influencing the office. Commonwealth's Attorneys may sit on the program's board as long as they do not reveal any client confidences or secrets, do not use the board position to obtain an advantage for their client and do not state or imply to their client that they may improperly influence the program. 2/24/1998
1271

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A Commonwealth's Attorney, who also has a private practice, may not represent clients against whom there may be charges of criminal misconduct, even if the clients consent. "[T]he Commonwealth's Attorney must be sensitive to the public perception regarding part-time private practice of a public officer."11/21/1989
0268

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9-Government Lawyer Conflicts

51-Government Attorneys

A county's Commonwealth's Attorney may not represent clients in civil matters against the county. 8/25/1975
1578

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9-Government Lawyer Conflicts

33-Office Sharing with Other Lawyers

48-Criminal Defense Lawyers

51-Government Attorneys

A criminal defense lawyer may lease space to a Commonwealth's Attorney's office as long as the space has a separate entrance and there would be no public access to the Commonwealth's Attorney's office (because there is no chance of any sharing of confidential information as there was in LEO 1416).2/8/1994
0522

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10-Former Government Lawyer Conflicts

24-Representation of or Adversity to Witnesses

51-Government Attorneys

A former Assistant Commonwealth's Attorney may not represent a Special Grand Jury when the lawyer's new firm represents two uncooperative material witnesses in the investigation. 8/1/1983
0702

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10-Former Government Lawyer Conflicts

51-Government Attorneys

A former Assistant Commonwealth's Attorney may not represent the plaintiff in an action against a defendant who was also a criminal defendant prosecuted by the lawyer. 7/3/1985
1371

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10-Former Government Lawyer Conflicts

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

A former Assistant Commonwealth's Attorney may represent a criminal defendant on appeal if the lawyer had no substantial responsibility over the case while in the Commonwealth's Attorney's office (the former Assistant Commonwealth's Attorney had nothing to do with the case, never saw the file, never heard of the case and had no knowledge of the case).On the other hand, a former Assistant Commonwealth's Attorney is per se prohibited from defending a criminal defendant if the lawyer prosecuted the defendant on a separate earlier drug charge while a public employee. Consent would not cure this problem "because of a need for the heightened sensitivity of public perception regarding the private practice of a public employee."10/1/1990
0942

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10-Former Government Lawyer Conflicts

51-Government Attorneys

A former Assistant Commonwealth's Attorney may represent a victim in a civil case as long as the lawyer did not participate in the prosecution of the alleged criminal while an Assistant Commonwealth's Attorney. 6/12/1987
1570

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10-Former Government Lawyer Conflicts

24-Representation of or Adversity to Witnesses

51-Government Attorneys

A former Assistant Commonwealth's Attorney who was involved in a criminal matter while a public employee may represent the victim against a former witness for the Commonwealth in a later civil action, as long as the Commonwealth's Attorney's office consents and the lawyer's "prior contacts with the victim did not involve the purpose of obtaining professional employment." 12/14/1993
0604

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10-Former Government Lawyer Conflicts

51-Government Attorneys

A former Commonwealth's Attorney may not represent a civil defendant in a wrongful death action when as Commonwealth's Attorney the lawyer prosecuted a related criminal charge against the defendant. 8/10/1984
1879

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

A government lawyer acting as "an administrative prosecutor before a regulatory agency or board": (1) is not governed by Rule 8.3, because that rule applies to criminal prosecutions and not to administrative proceedings; (2) is governed by Rule 3.1, and therefore "should not proceed unless there is a non-frivolous basis for doing so."1/15/2015
0303

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5-Lawyers Changing Jobs

10-Former Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm hiring a former Assistant Commonwealth's Attorney may defend criminal cases that arose while the lawyer was in public service, as long as the lawyer had no involvement in the cases while in public service. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.]11/2/1978
0230

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51-Government Attorneys

55-Firm Names and Letterhead

A law firm may not indicate on its letterhead that one of its lawyers is a Commonwealth's Attorney. 9/27/1973
1250

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10-Former Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm may not represent criminal defendants after hiring a former Assistant Commonwealth's Attorney who had been assigned to prosecute or had some minor involvement involving the prosecution of the defendants, even though the Commonwealth's Attorney did not recall any of the facts, did not recall any discussions about the case and had not made any court appearances on behalf of the Commonwealth. The Bar held that the Commonwealth's Attorney had sufficient responsibility to trigger DR 9-101(B). Given the appearance of impropriety, consent from the client would not cure the conflict. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.]7/25/1989
0358

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7-Family Conflicts

9-Government Lawyer Conflicts

28-Law Firm Staff

48-Criminal Defense Lawyers

51-Government Attorneys

A law firm may represent clients being prosecuted for traffic or criminal cases even though the spouse of one of the firm's associates is an Assistant Commonwealth's Attorney. The same is true when a firm employs a paralegal whose spouse is the Commonwealth's Attorney. In both cases, the firm must advise its clients and the court of the relationships.3/10/1980
1070

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9-Government Lawyer Conflicts

19-Judge Conflicts

51-Government Attorneys

A lawyer acting as a Special Justice may not handle any cases in which the lawyer was involved as an Assistant Commonwealth's Attorney. 5/4/1988
1671

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3-Multiple Representations on the Same Matter

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

24-Representation of or Adversity to Witnesses

51-Government Attorneys

A lawyer acting as both Commonwealth's Attorney and city attorney obtains an indictment against a builder in a building inspection dispute. One of the lawyer's assistants interviews the building's owner to obtain information for the criminal prosecution. The owner sues the builder and the city's building inspector in a civil lawsuit.The lawyer faces a conflict in prosecuting the builder while advising the building inspector and representing the city's interests in the civil litigation (because the lawyer "likely would have discovered the facts and circumstances surrounding the builder's dealings with the building inspector which would likely be adverse to the defense of the building inspector and the interests of the City"). This conflict was not curable by consent, because it was "not obvious" that the lawyer could play both roles.The lawyer's resignation as City Attorney does not remove the conflict, since the lawyer still owes duty to the former clients (the city and building inspector).One of the lawyer's assistants may continue to represent the city upon becoming full-time City Attorney even though the assistant had interviewed the building's owner in connection with the criminal prosecution of the builder. The interview "did not create an attorney-client relationship nor expectation of confidentiality" and therefore does not bar this lawyer from being adverse to the owner in the civil litigation (the bar noted that "victims of crimes are not clients of prosecutors"). [Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.]4/1/1996
0398

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51-Government Attorneys

A lawyer acting as Commonwealth's Attorney may also represent the county's Public Service Authority and Industrial Development Authority. 1/20/1981
0782

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35-Threatening Criminal and Disciplinary Action

48-Criminal Defense Lawyers

51-Government Attorneys

73-Family Law Lawyers

A lawyer in a divorce case may properly advise the client to start criminal proceedings against the spouse for taking personal property if the facts show that the criminal case was not initiated solely to gain an advantage in the civil divorce case, and the Commonwealth's Attorney did not act improperly in prosecuting.4/22/1986
0780

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7-Family Conflicts

9-Government Lawyer Conflicts

51-Government Attorneys

A lawyer may defend cases in courts in which the lawyer's spouse (an Assistant Commonwealth's Attorney) is prosecuting cases, as long as they do not represent adversaries in the same case. [Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.]7/25/1986
0429

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7-Family Conflicts

51-Government Attorneys

A lawyer may handle personal injury cases arising from accidents in which a partner's son is involved as a Commonwealth's Attorney, although the conflict should be addressed on a case-by-case basis. 8/14/1981
1012

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9-Government Lawyer Conflicts

51-Government Attorneys

A lawyer may not pursue a civil case against a rapist if the lawyer's partner prosecuted the rapist while an Assistant Commonwealth's Attorney. [Rule 1.11 deals with former government lawyers; this representation would require the government's consent or screening of the former government lawyer.]12/10/1987
0840

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9-Government Lawyer Conflicts

51-Government Attorneys

A lawyer may not represent a Commonwealth's Attorney in a federal action while representing individuals being prosecuted by the Commonwealth's Attorney. 10/9/1986
0351

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9-Government Lawyer Conflicts

51-Government Attorneys

A lawyer may not represent a plaintiff in a civil case when the lawyer will soon become a Commonwealth's Attorney and the criminal charges against the defendant are still pending.1/15/1980
1243

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10-Former Government Lawyer Conflicts

51-Government Attorneys

A lawyer may not represent clients in DUI matters when the lawyer formerly had substantial responsibility in those particular matters as a Commonwealth's Attorney, even if the clients and the Acting Commonwealth's Attorney consent (given the appearance of impropriety).5/2/1989
0185

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7-Family Conflicts

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

A lawyer may practice criminal law in the jurisdiction where the lawyer's spouse is an Assistant Commonwealth's Attorney, as long as the clients consent and the spouse has had no contact with the matter at issue. [Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.]10/31/1980
0606

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7-Family Conflicts

9-Government Lawyer Conflicts

51-Government Attorneys

A lawyer may represent a personal injury plaintiff in an action against the defendant although the lawyer's law partner-spouse (a part-time Commonwealth's Attorney) prosecuted the defendant on a reckless driving charge arising from the same matter (the imputed disqualification rule did not apply to such disqualifications). 9/27/1984
0735

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51-Government Attorneys

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer may serve as co-executor of an estate and a full-time Assistant Commonwealth's Attorney. 11/1/1985
1241

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10-Former Government Lawyer Conflicts

51-Government Attorneys

A lawyer representing a defendant in an automobile accident case learns that a partner prosecuted the client while an Assistant Commonwealth's Attorney. The former Commonwealth's Attorney has not and will not be involved in the civil case. Given the appearance of impropriety, the law firm must withdraw from representing the defendant in the civil case, even if the client consents. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.]5/2/1989
0986

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

36-Withdrawal from Representations

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A lawyer represents two criminal co-defendants. Just before trial, the Commonwealth's Attorney offers to plea bargain with one if that defendant will testify against the other. The lawyer drops the representation of the defendant receiving the offer. The lawyer later learns that the former client intends to testify against the continuing client and has also shared the lawyer's work product with the Commonwealth's Attorney. Although the continuing client insists that the lawyer continue the representation, the lawyer must withdraw. The Bar found nothing wrong with the Commonwealth's Attorney interviewing the former client (before the client has a new lawyer) and obtaining the former lawyer's work product from the former client. [This LEO was overruled by LEO 1702, which would prohibit the lawyer from obtaining or learning the substance of the work product.]10/27/1987
0562

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

51-Government Attorneys

A new part-time Commonwealth's Attorney may not prosecute defendants when the lawyer previously represented a co-defendant while in private practice. The assistant is likewise disqualified, since the assistant shares a private law practice with the part-time Commonwealth's Attorney. 4/10/1984
1463

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9-Government Lawyer Conflicts

51-Government Attorneys

67-Lawyers Acting as Guardians Ad Litem"

73-Family Law Lawyers

A part-time Assistant Commonwealth's Attorney may act as a guardian ad litem in proceedings before the Juvenile & Domestic Relations Court as long as there are no pending criminal or civil proceedings in which the Commonwealth's Attorney might have to participate. 6/9/1992
0696

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7-Family Conflicts

9-Government Lawyer Conflicts

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

51-Government Attorneys

A part-time Assistant Commonwealth's Attorney may not continue representing a client in a civil matter after criminal charges are brought, even if the lawyer is not involved in the criminal prosecution. The lawyer's spouse and law partners are also disqualified. The part-time Assistant Commonwealth's Attorney or that lawyer's spouse or law partner may represent a civil client as long as there are no proceedings or investigations pending.5/10/1985
0451

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51-Government Attorneys

A part-time Assistant Commonwealth's Attorney may represent a podiatrist in a hospital privilege case under the Virginia Code, as long as the action arises in a jurisdiction other than that in which the lawyer acts as an Assistant Commonwealth's Attorney. 4/12/1982
0600

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9-Government Lawyer Conflicts

51-Government Attorneys

73-Family Law Lawyers

A part-time Assistant Commonwealth's Attorney may represent a private party in a domestic case in the local Juvenile & Domestic Relations Court when there are no pending proceedings or investigations. 9/14/1984
1110

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9-Government Lawyer Conflicts

10-Former Government Lawyer Conflicts

51-Government Attorneys

A part-time Assistant Commonwealth's Attorney representing a county Department of Social Services may also represent Medicaid applicants before the State Board of Social Services because the private representation does not relate to a matter in which the lawyer had "substantial responsibility" while a public employee. 8/1/1988
0483

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1-Adversity to Current Clients

9-Government Lawyer Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may challenge the constitutionality of a state law as long as the lawyer has no duty to enforce the law and the main defendants do not include any state employees for whom the lawyer must provide legal representation. 11/29/1982
0594

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9-Government Lawyer Conflicts

51-Government Attorneys

73-Family Law Lawyers

A part-time Commonwealth's Attorney may handle civil domestic relations cases as long as criminal proceedings are not pending or "being evaluated." 5/14/1984
0446

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may not represent landowners in a condemnation proceeding when the lawyer had previously represented the interests of the State Highway Department against the landowners. 10/16/1981
0726

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9-Government Lawyer Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may not represent the Commonwealth in a criminal matter in which the lawyer had represented the defendant while in private practice. A part-time Commonwealth's Attorney may prosecute former clients in matters unrelated to previous representations, as long as the lawyer does not have any material confidential information. 9/24/1985
0643

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7-Family Conflicts

9-Government Lawyer Conflicts

20-Government Official Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may represent a Board of Zoning Appeals on which the lawyer's wife sits. 4/5/1985
0420

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51-Government Attorneys

73-Family Law Lawyers

A part-time Commonwealth's Attorney may represent a mother in a custody dispute, even if the lawyer is theoretically subject to be called upon by the court to represent the mother under the Uniform Reciprocal Enforcement of Support Act, as long as the lawyer is not requested to undertake that representation by the court. 8/13/1981
0613

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9-Government Lawyer Conflicts

51-Government Attorneys

73-Family Law Lawyers

A part-time Commonwealth's Attorney may represent a private party in a child custody matter as long as there are no pending criminal charges or investigations. 2/1/1985
1569

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9-Government Lawyer Conflicts

35-Threatening Criminal and Disciplinary Action

51-Government Attorneys

A part-time Commonwealth's Attorney may represent a retailer in suing a delinquent customer if an independent special prosecutor is appointed to investigate or try any related criminal charges, but may not "allude to possible criminal prosecution, when corresponding with a debtor, for the sole purpose of advancing his client's civil claim." 12/14/1993
0633

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9-Government Lawyer Conflicts

20-Government Official Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may represent parents or the school board in the lawyer's private practice as long as the lawyer has no involvement with the matter in the public role. A lawyer who is also a legislator may also represent parents or school boards with consent. 6/19/1985
0720

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51-Government Attorneys

A part-time Commonwealth's Attorney may use official stationery to solicit re-election votes as long as the lawyer pays for the stationery and postage. 8/30/1985
1018

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35-Threatening Criminal and Disciplinary Action

51-Government Attorneys

A part-time Commonwealth's Attorney must be careful in criminal prosecutions of defendants related to the lawyer's civil clients, and must also be careful in representing the Commonwealth in related criminal and civil matters, because the ethics code forbids using criminal charges to obtain an advantage in a civil matter. 1/7/1988
0731

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9-Government Lawyer Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney must be careful in prosecuting a civil client's husband, although there is no per se rule against it. 10/21/1985
1507

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4-Witness-Advocate Rule

24-Representation of or Adversity to Witnesses

25-Dealing with Unrepresented People

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A public defender was appointed to represent a criminal defendant, but the public defender's office was currently representing or formerly represented a number of witnesses. The Bar held that "continued representation of a new client is improper when it becomes necessary to challenge the credibility of a former client, even in an unrelated matter, if it requires the use of the former client's confidential information in order to zealously represent the current client." Because the public defender was apparently representing one of the current adverse witnesses, the continued representation of the defendant required the consent of the defendant and the witness. The Commonwealth's Attorney had discussed the case with the witnesses. The Bar held that the Commonwealth's Attorney may not approach a present client of defense counsel without notifying defense counsel, and may not provide any legal advice (such as recommending signing a waiver) to any unrepresented former client.The public defender may continue to represent the defendant even if it became necessary to call one of the same office's former lawyers as a witness because DR 5-102(A) applies only when the lawyer-witness is presently associated with the firm.3/1/1993
ABA-441

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39-Miscellaneous

51-Government Attorneys

All lawyers, including public defenders representing indigent persons under court appointment or government contract, must provide competent and diligent representation. Because "a lawyer's primary ethical duty is owed to existing clients," the lawyer must decline to accept new cases if the lawyer cannot adequately handle those cases. Lawyers who receive cases from the court should ask the court not to assign new cases, or move to withdraw from cases. A public defender or law firm member facing this situation should work with a supervisor to avoid an excessive case load, and continue to advance up the "chain of command" as much as possible. Normally, a lawyer's supervisor's resolution of a case load issue will constitute a "reasonable resolution of an arguable question of professional duty" under Model Rule 5.2(b). If the supervisor's response is not reasonable, the lawyer should go up the chain of command or file a motion with the trial court. If the court refuses to allow the lawyer to withdraw, the lawyer must continue with the representation while "taking all steps reasonably feasible to insure that her client receives competent and diligent representation." Lawyers who supervise public defenders must monitor the public defenders' work load and make reasonable efforts to avoid excessive case loads.5/13/2006
1383

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney acts as trustee. If a lawyer in a civil case is deemed to be representing the trustee, the lawyer may not also represent criminal defendants being prosecuted by the Assistant Commonwealth's Attorney. It would also be improper for the Assistant Commonwealth's Attorney to prosecute cases in that circumstance.11/15/1990
1050

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51-Government Attorneys

An Assistant Commonwealth's Attorney may assist in the collection of delinquent real estate taxes. 3/2/1988
1020

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9-Government Lawyer Conflicts

44-Conflicts - Miscellaneous

51-Government Attorneys

An Assistant Commonwealth's Attorney may not represent a party in a personal injury case in which there has been a collateral criminal prosecution. The Bar rejects the notion of an ethics screen in the Commonwealth's Attorney's office. 1/21/1988
0236

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1-Adversity to Current Clients

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney may not represent any private party in criminal matters before a court in which the lawyer practices.1/3/1974
0675

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51-Government Attorneys

An Assistant Commonwealth's Attorney may not represent private parties in litigation involving information obtained in the lawyer's capacity as an Assistant Commonwealth's Attorney. 3/22/1985
1197

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9-Government Lawyer Conflicts

51-Government Attorneys

58-Real Estate Lawyers

An Assistant Commonwealth's Attorney may represent clients in zoning, special use permit or variance matters, because the lawyer would not have had "substantial responsibility" over those matters while a public employee. 1/4/1989
0597

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4-Witness-Advocate Rule

51-Government Attorneys

An Assistant Commonwealth's Attorney may testify for the Commonwealth unless there will be some dispute about the testimony. 8/17/1984
1008

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10-Former Government Lawyer Conflicts

51-Government Attorneys

An Assistant Commonwealth's Attorney was to join a firm in two months. The firm may continue to defend cases brought by the Commonwealth's Attorney as long as the clients consent. The possible conflicts should also be disclosed to the court, and the parties' consents reflected on the record. [Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.]11/24/1987
0624

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7-Family Conflicts

9-Government Lawyer Conflicts

19-Judge Conflicts

51-Government Attorneys

An Assistant Commonwealth's Attorney whose husband is a judge may not appear before her husband or have any role in any cases assigned to her husband. 11/13/1984
0673

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7-Family Conflicts

9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

An Assistant Commonwealth's Attorney's spouse may not be involved in private litigation related to criminal matters in which the Assistant Commonwealth's Attorney has been involved.3/15/1985
1666

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

51-Government Attorneys

Because "a lawyer cannot be adverse to a former client in a substantially related matter, or if the lawyer learned relevant confidences during the earlier representation," a public defender who is elected a Commonwealth's Attorney must decide on a "case by case" basis whether the lawyer can prosecute former clients; disqualification would result in the vicarious disqualification of the entire Commonwealth's Attorney's office. 2/9/1996
1415

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24-Representation of or Adversity to Witnesses

51-Government Attorneys

77-Communicating with an Individual Adversary

Because a Commonwealth's Attorney does not represent a victim/ witness, the lawyer may rely on the testimony of the victim/ witness in one prosecution and prosecute the victim/witness in a related prosecution (although the Commonwealth's Attorney may communicate directly with the victim/witness only with counsel's consent if the victim/witness is represented). 6/13/1991
1594

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

51-Government Attorneys

Determining if a Commonwealth's Attorney's statements to a newspaper reporter about a pending case constitutes a danger of interfering with the fairness of a trial by jury raises a legal question beyond the Bar's jurisdiction. If a "finder of fact" ultimately determines that the statements did constitute such a danger, the "fact that the matter was not ultimately tried by a jury is not dispositive." [The Bar did not indicate how a finder of fact would be called upon to make such a determination.] [Rule 3.6(a) replaces the "clear and present danger" standard with a "substantial likelihood of interfering with the fairness of the trial by a jury" standard.]6/14/1994
1799

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16-Lawyer's Personal Interests

33-Office Sharing with Other Lawyers

51-Government Attorneys

Determining whether a business relationship such as a landlord/tenant relationship between a Commonwealth Attorney and a private lawyer prevents the private lawyer from defending cases handled by the Commonwealth Attorney (and which cannot be cured with consent because the Commonwealth Attorney cannot obtain consent from the Commonwealth) is a fact intensive matter. Here, the following facts triggered the prohibition: the Commonwealth Attorney and the private lawyer co- owned a building; were each responsible for the mortgage; the building houses the defendant lawyer's practice; and the Commonwealth Attorney is the co owner of the "computers, office equipment and furniture of the defense attorney's law practice."6/30/2004
1261

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

51-Government Attorneys

Even with consent, a Commonwealth's Attorney may not prosecute UMW member if the lawyer owned part of a coal company against which the UMW members are striking. The Bar stated that it "is cognizant of the need for a heightened sensitivity to public perception of ethical improprieties in the legal profession in general and in particular of one who is engaged in representing the public rather than individual clients. The government lawyer must not place himself in a situation where his loyalties are or may be perceived as being divided." 5/24/1989
1682

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9-Government Lawyer Conflicts

20-Government Official Conflicts

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

51-Government Attorneys

It is not per se impermissible for a Commonwealth's Attorney or criminal defense lawyer to participate on a Community Criminal Justice Board, which develops and evaluates community corrections programs (but does not make any findings or recommendations in individual cases), as long as the lawyers do not reveal client confidences, do not seek any special advantages for themselves or their clients, and do not advise their clients that they can improperly influence any Board members.5/16/1996
1416

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9-Government Lawyer Conflicts

33-Office Sharing with Other Lawyers

48-Criminal Defense Lawyers

51-Government Attorneys

It would be unethical for a lawyer to represent criminal defendants being prosecuted before a Commonwealth's Attorney when the lawyer leases office space to the Commonwealth's Attorney and shares a common waiting room, receptionist and law library with the Commonwealth's Attorney.5/13/1991
1058

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28-Law Firm Staff

51-Government Attorneys

LEO 1046 determines whether a full-time Commonwealth's Attorney may prosecute an embezzlement that involves a store owned by an employee of the law firm where the Commonwealth's Attorney formerly practiced. [Under LEO 1046, the prosecution would be proper if the lawyer could rebut the presumption that the lawyer had acquired confidential information from the law firm employee.] [Rule 1.11(d) would allow this representation if the lawyer were never "personally and substantially" involved in the matter while in private practice.]3/18/1988
1619

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5-Lawyers Changing Jobs

9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

51-Government Attorneys

One of two 50% shareholders in a professional corporation becomes a Commonwealth's Attorney. As long as the lawyer continues to own the stock, the lawyer may not prosecute defendants represented by the former firm (at least as to prosecutions begun after the lawyer left the firm). Consent would not cure this conflict, because the Commonwealth's Attorney is a "constitutional officer elected by the public." An Assistant Commonwealth's Attorney may prosecute such defendants, because DR 5-101(A) contains no vicarious disqualification provision. The firm may defend cases brought by the Commonwealth's Attorney's Office only if its clients consent after full disclosure. If the Commonwealth's Attorney learned confidences from any criminal defendant while at the former firm, a special prosecutor must prosecute the cases. 11/29/1994
1876

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23-Communicating with an Adversary - Miscellaneous

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

Prosecutors aware that non-citizen defendants without court-appointed counsel in a court which does not conduct plea colloquies may not offer a plea deal in exchange for a guilty plea without advising the defendant to obtain legal advice or request that the court conduct a colloquy.3/19/2015
1862

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

51-Government Attorneys

Prosecutors learning of exculpatory evidence must comply both with the Brady standard [Brady v. Maryland, 373 U.S. 83 (1963)] and with Rule 3.8(d). Thus, a prosecutor "may not withhold the evidence merely because his legal obligations pursuant to Brady have not yet been triggered." Among other things, the ethical "duty of timely disclosure of exculpatory evidence requires earlier disclosure than the Brady standard, which is necessarily retrospective, requires." Prosecutors must obtain a court order relieving them of the ethical duty to disclose exculpatory evidence if they believe that such disclosure "may jeopardize the investigation or a witness." Even if a prosecutor does not have a duty under Rule 3.8(d) to advise a defendant of a primary witness's death or unavailability, the prosecutor "may not make a false statement about the availability of the witness . . . either to the opposing lawyer during negotiations or to the court when the plea is entered." [The Opinion does not address the ethical implications of a prosecutor's silence in either scenario.]7/23/2012
ABA-469

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

49-Lawyers - Miscellaneous

51-Government Attorneys

Prosecutors who allow private debt collection companies to use their stationery to explicitly or implicitly threaten prosecution of delinquent debtors violate: (1) ABA Model Rule 8.4(c)'s anti-deception provision; (2) ABA Model Rule 5.5(a)'s prohibition on assisting nonlawyer's unauthorized practice of law, because such conduct necessarily involves nonlawyers analyzing whether a crime has been committed and a prosecution would be justified.11/12/2014
1046

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

51-Government Attorneys

The chief complaining witness in a criminal matter is represented by the former firm of the Commonwealth's Attorney. The Commonwealth's Attorney may continue to prosecute the defendant if the Commonwealth's Attorney was not involved in representing the witness and had not acquired any confidential information from the witness.3/1/1988
1767

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1-Adversity to Current Clients

2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

The Commonwealth's Attorney's Office may not prosecute defendants being represented by lawyers at a firm which is representing the Office in collection matters (consent is unavailable, because the client in the criminal cases is the Commonwealth, "which is unable to provide consent"). It would be unreasonable for defense attorneys to believe that their representation of criminal defendants would not be affected by the attorneys' representation of the Office (because the work provides a source of income to the defense attorney). Criminal defense lawyers would not be able to handle collection cases against their former clients without the former clients' consent (which seems "at best, unlikely"), yet the law does not allow the collection lawyer to subcontract cases involving the lawyer's former criminal clients. All of these disqualifications would be imputed to the entire law firm and the Office. The law establishing the collection procedures does not trump the ethics Rules.9/25/2002
1798

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51-Government Attorneys

The ethics rules apply with full force to Commonwealth's Attorneys, so Commonwealth's Attorneys act unethically by taking cases that they do not have time to handle properly. Supervisors act improperly in assigning "an impermissibly large case load" to an Assistant Commonwealth's Attorney. The Bar explained that "the facts that the client is the amorphous Commonwealth and that the Commonwealth's Attorney has himself a large case load provides no safe harbor from the requirements of Rule 5.1."6/30/2004
1867

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48-Criminal Defense Lawyers

51-Government Attorneys

The ethics rules do not ban per se agreements between a prosecutor and a criminal defendant to dismiss criminal charges in return for the defendant releasing the prosecutor from possible civil liability. However, prosecutors "should not require release dismissal agreements as a matter of course in dismissing criminal charges," and such agreements "will be subject to intense legal and ethical scrutiny." Among other things, a prosecutor may not seek such a release if the possible civil claim is unrelated to the criminal charge, and must dismiss any criminal charges not supported by probable cause.11/15/2012
0684

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

The partners of a part-time Assistant Commonwealth's Attorney may defend criminal cases as long as the Assistant Commonwealth's Attorney has no contact or responsibility for the cases.4/10/1985
0674

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

The partners of a part-time Commonwealth's Attorney may defend criminal cases in nearby jurisdictions. Disqualification of the part-time Commonwealth's Attorney requires disqualification of the entire firm.3/22/1985
0665

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7-Family Conflicts

9-Government Lawyer Conflicts

51-Government Attorneys

The spouse and law partner of a part-time Commonwealth's, city or county attorney may not represent a party in a real estate transaction involving a subdivision plat in which the lawyer rendered advice. If the client consents, the spouse/law partner may proceed as long as the lawyer had no role in the matter. 3/15/1985
1746

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10-Former Government Lawyer Conflicts

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

This opinion addresses numerous scenarios involving a former Commonwealth’s Attorney’s ability to represent clients who have or have had some involvement in the criminal justice system during or after the time that the Commonwealth's Attorney held office. New Rule 1.11 differs from the earlier ethics Code in three respects: it applies to government lawyers who participated “personally and substantially” in a matter rather than those who had “substantial responsibility;” it applies to government lawyers who played such a role “in connection with a matter” rather than “in a matter;” and it requires curative consent from the new client in addition to the former government employer. The Bar finds that in some of the scenarios, the “former proceeding and the new proceeding share the same parties and some of the same significant facts,” thus triggering Rule 1.11. In determining if a government lawyer’s involvement was “personal and substantial,” the Bar indicated that “consideration should be given to whether his involvement was of such a degree as to provide the opportunity for that potential risk [“of abuse of a public position for the benefit of a private client”].” Government lawyers must also consider whether the “receipt of confidential information” creates a conflict. Although in a private setting consent could cure a conflict created by the receipt of confidential information, here “the former client is the Commonwealth; thus such consent is not available.”8/30/2000
1208

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9-Government Lawyer Conflicts

48-Criminal Defense Lawyers

51-Government Attorneys

To avoid the appearance of impropriety, a law firm may not represent the Commonwealth's Attorney and also defend criminal cases being prosecuted by the Commonwealth's Attorney. An ethics screen within the Commonwealth's Attorney's office would not avoid this disqualification.3/28/1989
0685

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7-Family Conflicts

9-Government Lawyer Conflicts

51-Government Attorneys

When an Assistant Commonwealth's Attorney is disqualified from representing a private litigant, the litigant may be represented by the Commonwealth's Attorney's spouse as long as there is "no nexus between the private matter for which the spouse is retained and the disqualified spouse's public responsibilities." 4/10/1985

Copyright 2000, Thomas E. Spahn