| LEO Num | Topics | Summary | Date |
1683
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| A board which hears grievance appeals and adopts a city's personnel rules is represented by an independent counsel in any grievance hearing (with the city attorney representing the city), although the city attorney represents the board in adopting personnel rules. Assuming that the board and the city are separate clients (which is a legal issue), their interests are not adverse in the grievance proceedings -- because the board is "merely the dispute resolution system" and "does not have an interest in the various grievances" between grievants and the city. On the other hand, the city attorney may not represent the city in challenging a personnel rule adopted by the board, because the city attorney represented the board in adopting personnel rules. It is "not obvious" that the City Attorney could adequately represent both clients in this situation, so consent would not cure the conflict. No conflict would arise if the city attorney represented the city in challenging the board's "application of rules to the facts of the particular grievance, or challenge[d] the Board's decision in a particular case," because "those matters are not substantially related to any advice given by the City Attorney to the Board." [Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.] | 9/23/1996 |
1464
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| A city attorney acting as a "scrivener" for citizens preparing proposed ordinances to be considered by a city council might be deemed to be acting as a lawyer for the group if the lawyer's services created the "expectation" of such a relationship in the minds of the citizens. [Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote]. (reconsideration 2/9/93) | 2/9/1993 |
1661
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| A City Attorney may represent a police officer in a case in which both compensatory damages and punitive damages are sought, even though the city would not be responsible for the payment of any punitive award. The city and the officer agree on the basic underlying facts and believe that they will advance consistent defenses. Still, the City Attorney must advise the officer in writing that the officer has the right to seek independent counsel to defend the punitive damage claim, and that the lawyer "would be required to withdraw from representation if discovery reveals the appropriateness of antagonistic defenses or that the officer acted contrary to City policy or outside the scope of his employment." The Bar analogized the situation to a lawyer hired by an insurance company representing an insured -- "although paid by the insurer, the lawyer must represent the insured with undivided loyalty;" may not disclose or use confidences or secrets "which may create a policy defense for the insurance company;" and must withdraw if the insured and insurer disagree about whether to settle the case. | 2/28/1996 |
1836
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| A city attorney represents the city which, pursuant to its charter, acts through an elected mayor, a city council, and a chief administrative officer. If asked by a city council member to prepare an ordinance that would affect the relationship between the city council and the mayor, the city attorney does not have a duty to keep the draft ordinance a secret from the mayor. Absent an organizational policy to the contrary (which would guide the city attorney's disclosure obligations), the city attorney may advise all of the city's constituents of the ordinance if the city attorney determines that the disclosure is in the best interest of the ultimate client (the city). The same is true of the city attorney's disclosure to other members of city council. If a conflict develops between various city constituents, the city attorney may be obligated to suggest that one or more of the constituents engage independent counsel. Although "an organization may adopt appropriate procedures for managing internal conflict issues," the city charter's language requiring the city attorney to represent all city constituents makes it highly unlikely that the city attorney could arrange for different subordinates in his office to represent the city council and the mayor (without sharing information about those separate representations). The charter authorizes the mayor to employ special counsel if a conflict arises with other city constituents. Unless the city attorney's representation of the city will be materially limited, the city attorney can represent all of the city's constituents even if there are policy issue differences among them. If the interest of one constituent becomes adverse to the organization's (city's) interest, that constituent should obtain separate representation. As the city's lawyer, the city attorney "may render legal opinions or conclusions with which a [city] constituent might strongly disagree or perceive as favoring another constituent." | 5/6/2008 |
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 |
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 |
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 |
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 |
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 |
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 |
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 |
1209
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| A county attorney may represent the Board of Supervisors in seeking review of the Board of Zoning Appeals' issuance of a special use permit even though the lawyer has represented the Board of Zoning Appeals on unrelated matters and will likely do so again. [Overruled to the extent inconsistent with Virginia LEO 1785, which held that a County Attorney who had advised a BZA in connection with a variance could not later represent the Board of Supervisors in a petition which named the BZA as a respondent.] | 2/16/1989 |
1128
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| A county attorney represents a Planning Commission, and also represents a plaintiff in an action against a member of the Planning Commission in an unrelated matter. The Bar declines to determine if the individual members of the Commission or the Commission as a whole is the "client" (labeling it a "legal question"). The answer would provide guidance on what consents the lawyer would need. | 10/14/1988 |
1422
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| A county attorney's office may not represent a regional transportation district commission which was conducting transactions with the county, because of the possibility of differing interests. This "forseeability of future conflicts" renders it "not obvious" that the lawyer could represent both the county and the commission. The Bar declined to determine if the lawyer working for the commission could be effectively screened from related county work. [Rule 1.7(a)(1) follows a subjective "reasonably believes" standard rather than the old Code's objective "obvious" standard.] | 6/13/1991 |
1145
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| A county attorney's statutory obligations to represent the county in connection with claims for payment does not create any conflicts. | 10/24/1988 |
0843
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| A county lawyer representing a county subdivision committee may not represent a developer before the committee unless all parties consent and the committee hires another lawyer. | 10/9/1986 |
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 |
ABA-393
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| A government lawyer may disclose information to a non-lawyer supervisor only with the client's consent if it is necessary to carry out the representation (otherwise, the lawyer may disclose data only if it does not reveal the client's identity or any confidential information). | 4/24/1995 |
0482
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| A government lawyer must comply with the rules for communicating with an adversary. If the lawyer does not know if an adversary is represented by counsel, the lawyer must ask whether the adversary wants a lawyer present, and continue the discussion only if the adversary does not. | 11/23/1982 |
1875
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| A government lawyer who will personally be subjected to a sequestration furlough (1) may not represent the agency in defending the sequestration furloughs, because "there is a conflict between the lawyer's personal interest in not being furloughed and the agency's interest in upholding the furloughs. . . . [T]he conflict may not be waived because the lawyer cannot reasonably believe that he will be able to provide competent and diligent representation to the agency in light of the nature and strength of his personal interest in the matter."; (2) may represent the agency in unrelated matters, with the agency's consent. These answers would be the same even if the lawyer retained private counsel to challenge his personal furlough. If the lawyer's employment with the agency ends, he may challenge his furlough (the Bar noted that the agency was willing to consent to his undertaking such a challenge while at the agency, so "it is manifestly unfair and illogical that the lawyer would be ethically precluded from pursuing his furlough challenge after the representation of the client has ended, solely on the basis that the agency will not consent.") | 7/24/2013 |
1393
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| A home builder sued the buyer for failure to pay, and the buyer counterclaimed for construction defects. The buyer also complained to the local Board of Building Code Appeals, which was represented by the county attorney. The board found that the builder had complied with the code but its finding was overturned on appeal. The county attorney was later hired to represent the builder in the civil lawsuit with the home buyer. However, the county attorney was barred from the representation because the role was "substantially related" to the work the lawyer did as a public lawyer, and would also place the lawyer in the untenable position of having to challenge the findings of the Board that the lawyer had earlier defended. | 3/21/1991 |
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 |
0495
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| A lawyer may be adverse to school board when the lawyer's partner represents the Board of Supervisors, because the governmental entities are separate "with neither being a parent body of the other". | 9/3/1982 |
0556
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| A lawyer may be employed as assistant county attorney although the lawyer's spouse and the spouse's law firm often litigate against the county, as long as (1) all clients consent; and (2) the lawyer has no contact with any litigation in which the spouse is involved. [Rule 1.8(j) permits related lawyers to be directly adverse to one another if the clients consent after full disclosure.] | 4/10/1984 |
1054
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| A lawyer may continue to represent criminal clients (but must act cautiously) if the lawyer's secretary was a part-time magistrate in the same jurisdiction. | 3/29/1988 |
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 |
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 |
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 |
1092
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| A lawyer represented a regional jail commission funded by the state, a county and two cities. One city appointed one of the five voting commissioners. The lawyer may represent a client in a civil rights case against the city's police department and a city police officer if the client and the jail commission consent. [The city's partial funding of the jail commission should not have made it a "client" for conflicts purposes.] | 6/16/1988 |
0244
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| A lawyer representing a client in a personal injury action against a city may become a part-time city attorney as long as another city attorney would work on the case and both the city and the client consent. | 5/9/1974 |
0216
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| A lawyer representing a client in a zoning appeal must make disclosure and withdraw from representing the client upon receiving notice of appointment as town attorney. | 7/28/1972 |
1086
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| A lawyer representing a county's Department of Social Services (which has recently been placed under the supervision of the county administrator) may represent a client before the county's Board of Supervisors or other county departments as long as the entities use another lawyer and the county and the Department consent. | 6/9/1988 |
1815
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| A lawyer representing a locality has appeared as counsel of record for the Board of Zoning Appeals ("BZA") in an appeal to the Circuit Court by a land use applicant who lost before the BZA. In a totally unrelated matter involving different land and different issues, the lawyer has now been asked by a zoning administrator to represent him in an appeal of a BZA decision to the Circuit Court (in which the petition will name the BZA as a defendant). In contrast to Virginia LEO 1785 (which involved a lawyer representing multiple clients on the same zoning variance), this situation involves multiple representations on different matters. The lawyer's direct adversity to the BZA (which is a client in the other matter) triggers Rule 1.7(a)(1), and there is thus no need to analyze whether the lawyer's representation will be "materially limited" under Rule 1.7(a)(2) which "must always be decided on a case-by-case basis, with a context driven analysis rather than a bright line rule". Before proceeding in direct adversity to his client the BZA, the lawyer must 1) "reasonably believe" that he can provide "competent and diligent representation to each affected client" (which uses an objective "disinterested attorney" standard under Comment 10); (2) determine that the representation is not prohibited by law; (3) assure himself that he is not representing adversaries in the same proceeding; and (4) memorialize the client’s consent in writing (the Bar explains that "obtaining a client's signature to acknowledge the consent is advisable in most instances," but a lawyer may meet that requirement if the lawyer "merely makes a note to file regarding what transpired").The lawyer had "commented" on the merits of the second matter, but the lawyer does not believe that the BZA "considered the comments to be legal advice." The Bar warns that LEO 1785 would apply if the BZA "reasonably considered" the lawyer's comment to be legal advice (explaining that the lawyer had the responsibility to explain his role at the hearing, and "expressly communicate to the BZA that he was not appearing before them as their legal advisor" if he was not). | 1/10/2006 |
1319
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| A lawyer waiting to be sworn in as Commonwealth's Attorney should not undertake criminal defense work if the cases are likely to remain uncompleted at the time the lawyer takes office. | 2/27/1990 |
0243
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| A lawyer whose partner acts as counsel to a County Board of Supervisors may represent clients before an authority appointed by the Board (an Industrial Development Authority) because it is a statutory entity independent of the Board. | 4/16/1974 |
1601
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| A lawyer working at a state institution of higher learning may enter into an employment contract under which the lawyer must disclose to the administration information that the lawyer has obtained from those seeking legal advice. Although an "expectation of confidentiality" may arise in situations in which no attorney-client relationship exists, the lawyer may resolve any problems by issuing "a disclaimer to colleagues or students indicating that no attorney/client relationship will be formed and any information received will not be treated as secret or confidential." | 7/18/1994 |
1253
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| A lawyer working for a state agency involved in providing legal services to parents and children in special education matters may not represent a parent or child in a matter on which the lawyer formerly acted as a part-time administrative hearing officer while in private practice. | 6/5/1989 |
1566
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| A lawyer-taxpayer complaining of a county lawyer's conduct has no obligation to report the lawyer under DR 1-103(A), because the lawyer-taxpayer's information is based on "suspicion" only. [Rule 8.3(a) requires a lawyer to report another lawyer's ethics violation under certain circumstances if the lawyer has "reliable information" about the breach.] | 12/14/1993 |
1038
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| A member of the Attorney General's office may be an advocate before a professional regulatory board even though a colleague advises the board, although the office must be careful to meet all ethical standards. | 1/26/1988 |
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 |
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 |
0969
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| A part-time assistant public defender with a private practice may represent a client in a custody action even though the public defender's office previously represented the client's spouse in a sexual abuse case. The sexual abuse case was terminated before the lawyer became an assistant public defender and although the lawyer has heard general references to the accused spouse's personality, the lawyer has received no information from the file or any confidences or secrets. | 9/30/1987 |
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 |
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 |
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 |
1785
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| 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]. | 11/14/2003 |
0581
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| A part-time county attorney who is not responsible for prosecuting traffic violations may represent personal injury plaintiffs in accidents involving traffic violations. | 5/31/1984 |
0610
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| A part-time town or city attorney may represent private clients even though the adverse party is the town or city's mayor (unless it involves the mayor's official position). | 11/13/1984 |
1205
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| A proposed FOIA amendment would require a member of a public body to certify that nothing improper was discussed. The lawyer representing the public body would have to reveal a false certification as a fraud upon a third party if the "fraud has been committed to dilute the citizenry's respect for the workings of government." Otherwise, the lawyer could not reveal a false certification.If one of the board members was a lawyer, that member could not sign a false certification. If the member did so, the county attorney discovering the falsity of the certification would have to report it to the professional authorities. It would be "rebuttably presumptive that a false certification by a presiding officer-member/attorney would reflect adversely on that lawyer's fitness to practice law" and would have to be reported to the Bar. | 4/13/1989 |
0882
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| A Special Assistant US Attorney who prosecutes at an Army base overseas may also advise lay prosecutors and police investigators who also have jurisdiction over the base. | 4/1/1987 |
0228
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| A state highway department lawyer may prepare documents a private landowner may sign to sell land to the state as long as the lawyer identifies the lawyer's role and invites the landowner to hire a separate lawyer to review the documents. | 9/20/1973 |
0964
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| An Assistant Attorney General employed in the support division represents the state (not any custodial or non-custodial parents), and must disclose this fact to any parents with whom the Assistant Attorney General works. The Attorney General represents Virginia departments as units, and the representation includes the department's employees when acting within the scope of their employment. Plaintiff's lawyers (including legal aid lawyers) must comply with the rules governing contacts with adversaries when litigating with the government. | 3/1/1988 |
1580
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| An Assistant Attorney General may ethically argue that a prior case decision should control a hearing panel's decision even if the Assistant Attorney General knows that the earlier decision "does not reflect that it was the product of a settlement agreement and not the product of a panel opinion." | 3/9/1994 |
1167
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| An Assistant Attorney General may represent a church in dealing with the Commonwealth in a highway right-of-way issue as long as the church and the Commonwealth consent after full disclosure. | 4/7/1989 |
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 |
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 |
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 |
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 |
1213
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| An assistant part-time prosecutor may defend criminal cases only in other jurisdictions and where there is no danger of public perception that the lawyer is exploiting a position to defend criminal clients. The Bar pointed to the following factors: the distance from the place where the prosecutor has official duties; the nature of the crime; the identity of the defendant; and the identity of the witnesses. | 1/17/1989 |
1159
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| An Assistant United States Attorney may act as executor for an estate naming the United States as sole beneficiary despite being employed by the beneficiary, because a private lawyer will represent the estate and the Assistant United States Attorney will therefore act as executor and not counsel. | 1/4/1989 |
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 |
1320
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| Because an Assistant Commonwealth's Attorney must be a witness in a perjury case based on the defendant's statements at a hearing, the Commonwealth's Attorney's office may not prosecute the perjury matter and should appoint a special prosecutor. [Under Rule 3.7(c), this disqualification is not imputed to the lawyer's firm unless there is an actual conflict of interest.] | 2/27/1990 |
ABA-405
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| Determining whether a lawyer may represent one government entity while being adverse to another depends upon "whether the two government entities involved must be regarded as the same client" or whether one representation may be "materially limited" by the other, in which case the conflict might be curable with consent. Determining if governmental entities are the same client is a "matter of common sense and sensibility" including such factors as: entities' understandings and expectations; any understanding between the entities and the lawyers; whether the government entities have "independent legal authority with respect to the matter for which the lawyer has been retained;" the entities' stake in the substantive issues or shared concerns about the outcome. Determining if one representation would be "materially limited" by another representation depends on whether the matter would affect the "financial well-being or programmatic purposes" of either client. In some situations, a lawyer's representation of a government entity "on an important issue of public policy so identifies her with an official public position" that the lawyer could not oppose the government, even on an entirely unrelated matter. | 4/19/1997 |
1776
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| Each jurisdiction's Public Defender and each jurisdiction's Capital Defense Unit should be considered separate legal entities for conflicts purposes, because each office acts independently, has a secure computer system and bears none of the indicia of offices in a multi-office law firm. Although a single state Commission oversees all of the offices, this fact should not result in a presumption that information in one office is shared with other offices. A Public Defender in an office may represent a capital defendant in a matter adverse to a client formerly represented by another lawyer in that office, "unless the defense of the current client would require the use of [protected] information obtained in the representation of the former client." | 5/19/2003 |
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 |
0394
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| If both clients consent, a County Attorney may represent the county before a local Retirement Board (opposing a county employee's request for disability benefits) even though the attorney normally acts as legal advisor to the Board (as long as the Board has retained another lawyer). | 11/14/1980 |
1096
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| If both clients consent, a lawyer may represent a county's Department of Social Services while simultaneously representing parents being prosecuted by the Department in unrelated matters. | 6/16/1988 |
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 |
1669
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| It is not per se improper for a part-time county attorney to also serve as a part-time assistant public defender, although a conflict (not curable by consent) would arise should the lawyer be asked to defend a criminal defendant: (1) if the county is an alleged victim; or (2) if the county attorney's office is responsible for prosecuting the crime (such as violations of building codes or local ordinances). The county attorney (also acting as a part-time public defender) does not face a conflict in advising the Board of Supervisors on such matters as law enforcement budgets, because the attorney is not a member of the governing body and therefore does not vote on the appropriations. Although such a dual role might create a "appearance of impropriety," such a standard "by itself is too vague a standard" to create a conflict. | 4/1/1996 |
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 |
1830
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| Lawyers in a public defender's office may provide nominal gifts to indigent clients for the purchase of personal items or food, as long as such "occasional de minimus humanitarian gifts" do not affect the lawyer's independent judgment (such as when the lawyers are "trying to persuade some of these clients to accept plea agreements to which the clients are initially resistant.") The majority of states totally prohibit such "financial assistance" under Rule 1.8(e). Such minor gifts do not run afoul of Rule 1.8(a), because they are gifts and do not constitute "business transactions" with the client. Although the rules "do not directly regulate nonattorneys," lawyers cannot do indirectly through a staff person what they cannot do directly -- although in this case the lawyer's staff may likewise provide such nominal humanitarian gifts to indigent clients. | 9/7/2006 |
1268
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| Neither a prosecutor nor a practicing criminal defense lawyer may serve on an adjudicatory board that may pass on the matter on which the lawyers had been involved, but may sit on policy-making bodies. | 10/3/1989 |
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 |
1511
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| The Attorney General's Office may communicate with an adversary about the assessment of costs (after the rest of the case has concluded) as long as the adversary's lawyer consents. [The LEO describes the adversary as the lawyer's "former client," but the request for Opinion does not indicate that the attorney-client relationship has ended.] | 4/12/1993 |
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 |
0944
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| This Opinion was withdrawn for reconsideration and eventually issued as LEO 1038. | 6/24/1987 |
1208
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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 |