LEO: Commonwealth's Attorney - Appearance LE Op. 1114
Commonwealth's Attorney - Appearance of Impropriety in
Representation of Decedent's Family in Wrongful Death Action
Having Previously Prosecuted the Reckless Driving Charges
Against the Defendant.
July 13, 1988
You advise that Attorney A was employed by a decedent's family to bring a
wrongful death action against D. The Commonwealth's attorney in that
jurisdiction unsuccessfully sought the issuance of a reckless driving
warrant against D. Subsequently, A associated the Commonwealth's attorney
for the purpose of trying the wrongful death action in the circuit court
of the county for which he is Commonwealth's attorney.
You wish to know whether the Commonwealth's attorney may ethically
represent the plaintiff under these circumstances.
Discipline Rule 9-101(B) [ DR:9-101] provides that an attorney shall
not accept private employment in a matter in which he had substantial
responsibility as a public employee. Although no formal charges were
brought against the defendant, the Commonwealth's attorney pursued a
course of conduct within the scope of his duties which could have resulted
in a criminal indictment. Therefore, the Committee opines that it would be
improper for the Commonwealth's attorney under these circumstances to
represent the plaintiff.
See also LE Op. 1012, LE Op. 942, LE Op. 702 and LE Op. 285.
Committee Opinion July 13, 1988