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