Legal Ethics Opinion #1538

Confidences and Secrets - Conflict of Interest - Personal
Interest Affecting Representation - Former Client: Commonwealth's
Attorney Making Determination on Community Services Board
Grievance After Commonwealth's Attorney Has Served on Board

You have presented a hypothetical situation in which an elected
Commonwealth's Attorney ("prosecutor") has been petitioned
pursuant to Virginia Code 2.l-ll4.5:l(D)(4)(d) to determine
whether a decision of an employee grievance panel hearing a
matter related to the termination of a local government agency
employee is appropriate as consistent with written policy.  You
indicate that the panel voted 2 to l to reinstate the chief
financial officer of a governmental agency finding that, although
there may have been deficiencies in the previously highly-rated
grievant's level of job training and performance, there was
compelling evidence to believe that his termination was
retaliatory because he and other employees were "whistle
blowers".  You comment that it appears that the 
statute in question requires that the prosecutor serve in a
quasi-judicial capacity.

You further indicate that, ten years earlier, when the prosecutor
was in private practice, he served as a member of the agency's
governing board and worked closely with the grievant in a board-
ordered secret audit of agency accounts which led to the
resignation of the agency's former executive director.  The
present grievant acted as a whistle blower in that situation on
the board's assurance that he would be protected from
retaliation.  You advise that, at the conclusion of that case and
of the prosecutor's service as a director, the prosecutor and
others recommended that the agency financial officer report
directly to the board rather than to the executive director of
the agency.  This change was never made.

After the inception of the current dispute, the grievant and two
other grievants who had been high-ranking employees of the agency
protested to the prosecutor that a member of the grievance panel
chosen by their and the agency-named panel member to serve as a
third member of the panel was not an appropriate person, since he
had served as board chairman of the agency during some of the
period touched on in the grievances, and was himself head of an
agency which had been employed by the grievant's agency.  As a
result of this protest, the prosecutor recommended to the former
chairman that he decline to serve and he did not so serve.  In
addition, the grievant was in part accused of harassment of a co-
worker in these proceedings.  With regard to that allegation, the
prosecutor was approached by that co-worker about initiating
criminal prosecution of the grievant and others for "stalking". 
The prosecutor felt prosecution was not merited under the

Finally, you advise that the prosecutor has had close contact
with this case as it developed, and has been a friend to several
of the persons involved, including the current chairman of the
agency board.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the prosecutor to serve in this
quasi-judicial capacity in light of his professional obligations
and his past close dealings with the parties and the agency

The appropriate and controlling disciplinary rule relative to
your inquiry is DR 5-l0l(A) which in pertinent part precludes a
lawyer from accepting employment if the exercise of his
professional judgment on behalf of his client may be affected by
his own personal interest, except with the consent of his client
after full and adequate disclosure under the circumstances.  In
addition, DR 5-l05(D), prohibiting a lawyer from subsequently
representing a client adverse to a former client (unless the
former client consents after full disclosure), and DR 4-l0l,
requiring a lawyer to preserve the confidences and secrets of a
client, would be applicable should the prosecutor's prior
association with the local government agency have risen to the
level of an attorney-client relationship.

The committee notes that your inquiry deals with "quasi-judicial"
responsibilities of the prosecutor.  Although it is beyond the
purview of the committee to interpret the Canons of Judicial
Conduct, your attention is directed to Canon 2(B) which exhorts a
judge not to "allow his family, social or other relationships to
influence his judicial conduct or judgment".

The committee has previously opined that it would be improper for
an attorney to represent clients in administrative hearings when
the attorney or other attorneys in his firm, on other occasions,
sits as a hearing officer in matters involving the same agency. 
See LEOs #6l7, 826.  In addition, the committee has previously
opined that, in certain circumstances, it would be improper for
an attorney to serve on a board or committee of a local
government agency while simultaneously representing clients in
matters related to the operations of that board or committee. 
See LEO #409 (service on school board's handicapped education
committee while representing handicapped children in special
education matters) and LEO #ll95 (service on housing board while
attorney's firm represents clients in eviction actions brought by
the housing authority).

In the facts you present, the committee believes that a conflict
of interest as contemplated by the language of DR 5-l0l(A) has
arisen as the cumulative effect of the prosecutor's prior service
as a director on the agency board, his close personal
relationship with several of the persons involved, and his
previous involvement in the events leading to the current
grievance.  Furthermore, since the statute under which the
prosecutor's services are requested does not establish any
attorney-client relationship, the committee is of the opinion
that it would be improper for the prosecutor to serve in a quasi-
judicial capacity hearing the grievant's appeal to the panel
decision since the requisite client consent cannot be obtained. 
Finally, the committee believes that a heightened sensitivity to
public perception regarding the duties of a public official
requires that a substitute prosecutor be appointed.  See LEOs
#l24l, l243, l250.

Committee Opinion
June 22, 1993