1785
|
| A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests]. |