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