LEO: Appearance of Impropriety -  LE Op. 1268


Appearance of Impropriety - Commonwealth's Attorney - Board/

Organizations: Commonwealth's Attorney or Defense Attorney

Serving on Board Which Reviews Criminal Convictions for

Sentencing Alternatives.


October 3, 1989


You have advised that you have been appointed as a member of the Board of

Directors of a community's Court Services while other attorneys have

previously been appointed to that organization's Community Corrections

Resources Board of the Community Diversion Incentive Program, all of which

were established pursuant to authority granted to localities under

Virginia Code § 53.1-180 et seq. for the purpose of providing the

judicial system with sentencing alternatives for certain nonviolent

offenders. You further indicate that the Court Services unit is a joint

entity of twelve counties and acts as a policy-making body which contracts

with the Virginia Department of Corrections for the provision of services.

The Community Corrections Resources Board is established by the Board of

the community's Court Services for the principal purpose of reviewing

cases referred by participating courts and developing possible community

sentencing alternatives as recommendations to be made to the referring



You have inquired as to the propriety of practicing criminal defense or

prosecuting attorneys serving on either the Board of Directors of the

community's Court Services (CS) or the Community Corrections Resources

Board (CCRB) where the attorney has represented either the Commonwealth or

a defendant in the criminal proceedings which lead to conviction,

sentencing and a referral for possible diversion.


You have specifically asked the Committee to opine regarding three issues

: (1) the propriety of service on CS by attorneys who might represent a

defendant or the Commonwealth; (2) the propriety of service on CCRB by

attorneys who might represent a defendant or the Commonwealth; and (3) the

propriety of either a Commonwealth's attorney or a defense attorney

participating as a member of CS or CCRB in a hearing to determine the

eligibility of a criminal defendant to participate in the Community

Diversion Incentive Program where the attorney had previously been

involved in the prosecution or defense of the underlying charge.


The appropriate and controlling disciplinary rules to the issues you have

raised are DR:8-101(A)(1) which provides that a lawyer who holds public

office shall not use his public position to obtain, or attempt to obtain,

a special advantage in legislative matters for himself or for a client

under circumstances where he knows or it is obvious that such action is

not in the public interest; DR:8-101(A)(2) which makes it improper for a

lawyer who holds public office to use his public position to influence, or

attempt to influence, a tribunal to act in favor of himself or of a client;

and DR:9-101(A)(1) and (2) which provide that a lawyer shall not accept

private employment in a matter upon the merits of which he has acted in a

judicial capacity or in which he had substantial responsibility while he

was a public employee.


In response to the first issue you have raised, the Committee is of the

view that, since the CS is described as a policy making body and not an

adjudicatory body, a Commonwealth's attorney's or defense attorney's

membership on the Board of Directors of that entity is not per se

improper. Since it is, however, empowered to develop, establish and

maintain community diversion programs, an attorney who sits on that Board

and who defends or prosecutes individuals in any of the twelve cooperating

jurisdictions must be mindful of any perception of an attempt to obtain a

special advantage or influence on behalf of any individual clients or the



While the responsibilities of the [CCRB] do not appear to be totally

adjudicatory in nature, the Committee recognizes that among the Board's

responsibilities, as outlined in § 53.1-185, is the determination of

whether "an appropriate, rational behavioral contract can be developed

with [an individual offender] for participation in a community diversion

program" and the provision to the judge of the referring court of "

findings and recommendations of the board made on individual offenders. ...

" Thus, the Committee is of the view that the CCRB is quasi-adjudicatory

in nature in that it is empowered to make recommendations upon which a

punitive disposition will be based. The Committee has previously opined

that even where a legal services attorney who was appointed to the board

of a local Redevelopment and Housing Authority was screened from cases in

which his legal services office represented clients against the Authority,

an appearance of impropriety still existed which could only be cured by

the attorney/board member's recusal from participation on the board in

cases where the legal services office represented a client in an action

before or against the board. (See LE Op. 1195; see also LE Op. 987)


Therefore, in response to the second and third issues you have raised,

the Committee is of the opinion that a Commonwealth's or a defense

attorney's membership on the CCRB is similarly not per se improper with

regard to determinations made by that entity regarding recommendations for

community diversion contracts for individuals who were not prosecuted or

represented by the attorney/member on the underlying charge. The Committee

is of the view, however, that participation in such a determination by an

attorney/board member who was involved in the prosecution or defense of

the underlying charge would be improper. The Committee further advises

that a potential for conflict may exist with future individuals whose

prosecution or defense is conducted by an attorney/member, which conflict

may be cured or recusal.


In addition, although membership on either entity does not, in the

Committee's view, constitute the creation of an attorney/client

relationship, the Committee cautions that in carrying out his official

duties, the attorney/board member must be mindful of the proscriptions of

 DR:4-101 in the protection of a client's (defendant or Commonwealth)

confidences and secrets. Similarly, the Committee cautions that the

attorney/board member recognize the proscription, as stated in DR:9-101(

C), against stating or implying that he is able to influence improperly or

upon irrelevant grounds any tribunal, legislative body or public official.

Thus, any reference to the attorney's membership on the board, including

but not limited to business announcements, must be made in such a way as

to avoid any implication of improper influence.


Committee Opinion October 3, 1989