LEO: Commonwealth's Attorney - Personal  LE Op. 1008


Commonwealth's Attorney - Personal Interests Affecting

Professional Judgment.


November 24, 1987


You advise that your firm recently reached an agreement whereby the

assistant Commonwealth's attorney in your area will join your firm

effective January, 1988. At the present time, the assistant Commonwealth's

attorney handles many criminal cases in general district and circuit court

while you handle criminal work in the other two courtrooms.


You wish to know whether or not it is proper for you to continue to

defend cases which the assistant Commonwealth's attorney prosecutes

between now and the beginning of 1988.


We feel that Disciplinary Rule 5-101(A) controls this situation.

Disciplinary Rule 5-101(A) [ DR:5-101] states that "a lawyer shall not

accept employment if the exercise of his professional judgment on behalf

of his client may be affected by his own financial, business, property or

personal interests, except with the consent of his client after full and

adequate disclosure under the circumstances."


The Committee, therefore, opines that you must disclose to clients in

whose cases the assistant Commonwealth's attorney will be associated the

fact that the assistant Commonwealth's attorney has accepted future

employment with your office. Consent of the client must be received before

you may represent him/her.


It is our feeling that the same conflict exists from the assistant

Commonwealth's attorney's perspective as it applies under DR:5-101(A).

Since the Commonwealth's attorney represents the public and the

defendant's rights could be affected, we suggest that the relationship

between you and the assistant Commonwealth's attorney ought to be

disclosed to the court and that consent of all parties should be reflected

on the record.


In addition, we believe that a very strong ethical consideration ought to

be examined in this case by the Commonwealth's attorney in allowing the

assistant Commonwealth's attorney to represent the public in any matter in

which you or your law firm is involved. We refer you specifically to

Ethical Consideration 9-2 [ EC:9-2].


Committee Opinion November 24, 1987