LEO: Commonwealth's Attorney - Dual Role: LE Op. 1197
Commonwealth's Attorney - Dual Role: Assistant Commonwealth's
Attorney Representing Clients in Zoning Matters and Requests for
Special Use Permits and Variances.
January 4, 1989
You wish to know whether a part-time assistant Commonwealth's attorney of
a city that has a city attorney may appear before the city's Council,
Planning Commission, Board of Zoning Appeals, or any other board on behalf
of a client when that client is requesting relief from that entity such as
zoning changes, specialty use permits, variance, etc., and such
representation does not involve any matters that are a part of the part-
time assistant Commonwealth's attorney's official duties.
Disciplinary Rules 9-101(B) and (C) [ DR:9-101] are the appropriate and
controlling rules in this situation, and provide:
A lawyer shall not accept private employment in a matter in which he had
substantial responsibility while he was a public employee [, nor shall he]
state or imply that he is able to influence improperly or upon irrelevant
grounds any tribunal, legislative body, or public official.
The Committee would also direct your attention to DR:8-101(A)(1) and (2
), which provides that a public official shall not use his public position
for his own or a client's advantage where he knows or it is obvious that
such action is not in the public's interest, nor shall he use his public
position to influence or attempt to influence a tribunal to act in his or
his client's favor.
Based on the facts you have outlined and in the absence of any effort on
the part of the part-time assistant Commonwealth's attorney to use his
public office for the private party's gain or implication that the public
office will or may influence the local tribunal's decision, the Committee
opines it would not be improper for the part-time assistant Commonwealth's
attorney to represent a client seeking zoning changes, special use permits
or variances from the City Council, Planning Commission or Board of Zoning
Appeals. The Committee notes that the city in question has a separate city
attorney, and that the matters outined in your letter which the assistant
Commonwealth attorney proposed to handle in front of the various local
boards were not matters in which he would have "substantial responsibility"
while acting as a public employee, nor does it involve any matters that
are part of the assistant Commonwealth's attorney's official duties. The
Committee would also admonish that should any litigation arise as a result
of the representation in question, the part-time assistant Commonwealth's
attorney may be assuming an adversarial role which would conflict with his
position as the city's assistant Commonwealth's attorney.
Committee Opinion January 4, 1989