LEO 1243

LEO: Appearance of Impropriety LE Op. 1243

Appearance of Impropriety - Commonwealth's Attorney - Criminal

Practice - Current Representation Substantially Related to

Responsibilities of Former Commonwealth's Attorney.

June 1,1989

You have advised that during the time that Attorney X served as

Commonwealth's attorney numerous persons were convicted of driving under

the influence of alcohol and driving on a suspended operator's license. In

addition, numerous individuals were declared habitual offenders based on

records certified to the Commonwealth's Attorney's Office by the Division

of Motor Vehicles and presented to the court as required by the Code of

Virginia.

You have asked the Committee to consider whether the former

Commonwealth's attorney may ethically represent private individuals in an

action in which he had responsibility while he was a public employee in

the following situations:

(1) May the former Commonwealth's attorney represent a defendant who was

charged with the criminal offense of driving after being declared an

habitual offender, based on a declaration obtained during the former

Commonwealth's attorney's tenure in office;

(2) May the former Commonwealth's attorney represent a defendant in a

civil proceeding to void an order declaring an individual an habitual

offender, where the individual was so declared in the jurisdiction, and

during the tenure of the Commonwealth's attorney;

(3) Can the former Commonwealth's attorney represent a defendant charged

with a second offense DUI or second offense driving on a revoked license

where the prior conviction will not be raised but which occurred during

the former Commonwealth's attorney's tenure in office;

(4) May the former Commonwealth's attorney represent an individual in a

proceeding to declare him an habitual offender if one of the required

convictions was obtained during the former Commonwealth's attorney's

tenure in office.

Further, you have inquired if any of these situations consitute a

conflict, can that conflict be cured by disclosure and a waiver from the

current acting Commonwealth's attorney and the former Commonwealth's

attorney's present client.

The appropriate and controlling rule relative to your inquiry is DR:9-

101(B) which provides that a lawyer shall not accept private employment in

a matter in which he had substantial responsibility while he was a public

employee.

The Committee directs your attention to LE Op. 1241 which is

dispositive of the questions you have raised in your inquiry. In that

opinion, the Committee indicated that a law firm's continued

representation of a defendant in a civil action arising out of a criminal

proceeding, which criminal proceeding was earlier prosecuted by a present

partner of the firm while he was an assistant Commonwealth's attorney,

constituted the appearance of impropriety even though the partner/former

assistant Commonwealth's attorney had not been involved nor would he

become involved in the defense of the civil action in question. The

Committee exhorted that the firm's continued involvement in the case was

improper because of the need for a heightened sensitivity to public

perception of the former public official's current private practice.

In the view of the Committee, the situations you have presented are

matters in which the attorney had substantial responsibility while he was

a public employee and to accept employment under the circumstances

described would be violative of DR:9-101(B). The Committee further

opines that consent by either the present client or the acting

Commonwealth's attorney would not cure the appearance of impropriety under

the general prohibition of DR:9-101(B). (See also LE Op. 285, LE Op.

702 and LE Op. 1012)

Committee Opinion June 1,1989

CROSS REFERENCES