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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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.”

Copyright 2000, Thomas E. Spahn