| LEO Num | Topics | Summary | Date |
ABA-509
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| (ABA Model Rule 1.11(c) “protects against the misuse of ‘confidential government information’” acquired by a full-time or part-time government lawyer, by disqualifying the lawyer from representing private clients on whose behalf the lawyer could use such information to an adversary’s material disadvantage. Such “confidential government information” consists of information the government is “prohibited by law from disclosing,” “has a legal privilege not to disclose,” and which is “not otherwise available to the public.” This disqualification standard differs from the other information-based conflicts standards in several ways. First, the disqualification applies if the government lawyer acquired information from someone other than the private client’s adversary. Second, the disqualification standard applies however the lawyer acquired such disqualifying information as “a public officer or employee” (such as a police officer), even if the lawyer was not representing the government (so it applies to lawyers “serving as legislators, public executives, and other public officers who are not representing the government as legal counsel).” Third, the disqualifying information need not be protected by the normal Rule 1.6 confidentiality standard – for instance it includes information the lawyer heard from another public officer or employee. Fourth, the disqualification standard applies if the former government lawyer “could” use the information to the adversary’s “material disadvantage” (not just if the lawyer does so). Whether such information could be used in that way is “a question of fact” (as is whether such information is “publicly available” through routine discovery). The disqualification standard “applies equally to a full or part time lawyer who currently serves or formerly served as a government officer or employee,” and is “not consentable.” It also applies to lawyers currently working in the government as a lawyer or otherwise, while maintaining a private practice. The disqualification standard applies to any full-time or part-time current or former government lawyer representing a “private client” – which can “include[] public entities and officials whom the lawyer represents in private practice.” But the disqualification standard does not apply to a current government lawyer working in that role who represents “a government employee in the employee’s personal capacity.”) | 2/28/2024 |
0574
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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| A county's Commonwealth's Attorney may not represent clients in civil matters against the county. | 8/25/1975 |
1578
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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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 |
486
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| ABA LEO 486 (5/9/19) (Because under the ABA Model Rules a prosecutor must be a “minister of justice and not simply . . . an advocate,” prosecutors have several ethical obligations when negotiating misdemeanor plea bargains with unrepresented defendants (criticizing some jurisdictions for negotiation methods “inconsistent with the duties set forth in the Rules of Professional Conduct”). Prosecutors must comply with various ABA Model Rule 3.8 duties, which sometimes “exceed the requirements of statutory and constitutional law.” Among other things, prosecutors: “may not negotiate pleas without first making an independent assessment of the relevant facts and law for each charge”; must take reasonable steps to assure that the accuseds have the right to counsel (noting that a prosecutor “may not make a plea offer or seek a waiver of the right to counsel before complying with Rule 3.8(b)”); must avoid accuseds' waiver of their important pretrial rights (explaining that it is improper for prosecutors to ask unrepresented accuseds if they wish to waive right to counsel or accept a plea “if it is clear from the circumstances that the accused does not understand the consequences of acceding to the request”). Prosecutors also have duties under ABA Model Rules 4.1 and 4.3; explaining among other things that “if the prosecutor knows the consequence of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during the plea negotiation.”) | 5/9/2019 |
ABA-441
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| 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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| 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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| An Assistant Commonwealth's Attorney may assist in the collection of delinquent real estate taxes. | 3/2/1988 |
1020
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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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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| 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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| 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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| 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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| 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 |
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| 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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| 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 |