You have presented a hypothetical situation in which Attorney
represented A, a divorced mother of a child whose custody and
support was contested by B, the child's father.  After substantial
litigation, A regained custody of her daughter. You indicate that,
ancillary to the custody case, Attorney represented A regarding
child support.

You advise that, in the Juvenile and Domestic Relations District
Court (J&DR), B testified that he had quit his job to restart his
insurance business.  The court transcript documents this testimony. 
You further advise that, on appeal in circuit court, B testified
that he had not quit his job but that he was wrongfully fired and
he produced a Virginia Employment Commission document to prove this
statement.  B then acknowledged that he had told the lower court a
different story and said that he had been embarrassed that he had
been fired.  This is also documented by a court transcript.  You
state that because A believed B to be lying in many other areas
(without proof to do anything about it), she was anxious to have
this matter settled in court. 

Further, you indicate that, at the end of the trial in which B said
that he had testified falsely in the lower court, the circuit court
judge directed Attorney to report B's possible perjury to the J&DR
district court judge.  The J&DR district court judge, through his
staff, directed Attorney to speak with the Commonwealth's Attorney
as to the necessary steps to pursue the perjury. You advise that
Attorney spoke with an Assistant Commonwealth's Attorney and later
spoke with the Commonwealth's Attorney, who advised Attorney to
start a perjury action through the magistrate's office, the entire
process for which took several months. 

You indicate that, subsequently, B was arrested for perjury and
Attorney testified against B at the preliminary hearing in general
district court.  Because the Assistant Commonwealth's Attorney did
not have the complete transcript, a partial transcript was ruled
inadmissible, and the case was dismissed.  You advise that Attorney
continued to pursue the collection of support from B and also spoke
with the Commonwealth's Attorney who decided to directly indict B
on perjury.  Attorney then testified before the grand jury.

You indicate that Attorney then received a letter from B's present
attorney which stated that B's present attorney was "uncomfortable
with the situation" since Attorney had personally sworn out a
perjury warrant against B, concerning testimony two years earlier,
after believing that B had violated the terms of a Court order as
to support.  The letter from B's present attorney recited
Attorney's testimony in the General District Court preliminary
hearing and her personal contact with the Commonwealth's Attorney. 
Finally, the letter alleges that the perjury case and the domestic
case were "so closely interwoven, especially with [Attorney] as a
[prosecuting] witness against B in the criminal matter and at the
same time representing A against B in the support matter".  Based
upon those conclusions, B's attorney urged Attorney to consider
withdrawing from representation of A in the domestic case.

You have asked the committee to opine whether, under the facts of
the inquiry, Attorney may continue to represent her client in the
support matter against the client's ex-husband while also serving
as a witness against the ex-husband on a perjury charge.  You also
ask whether there is the "appearance of impropriety".

The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 5-102, which concerns possible withdrawal as counsel
when the lawyer becomes a witness, and DR 7-104(A), which involves
threatening criminal prosecution to gain an advantage in a civil
The committee is of the opinion that it would not be improper for
Attorney to continue Legal representation of her client while also
testifying for the prosecution against the client's ex-husband on
a perjury charge.  The committee is of the opinion that Attorney's
role as a complaining witness in the perjury matter is not
tantamount to testifying in her client's case.  
The committee cautions, however, that the Attorney must be vigilant
in observing the requirement of DR 7-104, which prohibits an
attorney from presenting or participating in the presentation of
criminal charges solely to gain an advantage in a civil matter. 
Furthermore, the committee similarly cautions that, in testifying
on behalf of the Commonwealth, the lawyer should continue to
preserve the client's confidences and secrets as required by DR 4-

Finally, the committee notes that the "appearance of impropriety"
language of Canon 9 relates only to the limited contexts of judges,
former government attorneys, and a lawyer's exertion of improper
influence upon a tribunal, legislative body, or public official.

[DRs 4-101, 5-102, 7-104(A)]

Committee Opinion
July 21, 1994