LEO: Commonwealth's Attorney  LE Op. 1018


Commonwealth's Attorney.


January 7, 1988


You advise that you have been elected Commonwealth's attorney, a part-

time position, effective January 1, 1988. You will also continue with your

civil practice. You have learned that a contract exists between the

Commonwealth's attorney's office and the Department of Social Services for

collections of overpayments on welfare, food stamps and similar programs.

The office of the Commonwealth's attorney is also responsible for the

prosecution of criminal cases of welfare fraud as they are presented by

the Department of Social Services.


You wish to know whether or not this situation is improper.


Since the office of the Commonwealth's attorney represents the same

client (the Department of Social Services) in both civil and criminal

matters, this situation presents no Canon 4 or Canon 5 violations. The

Commonwealth's attorney must, however, be extremely careful to avoid any

violation of DR:7-104. DR:7-104 states that "a lawyer shall not present

criminal or disciplinary charges solely to obtain an advantage in a civil



The Committee also refers you to LE Op. 731. That opinion states, in

part, that "the criminal prosecution by a part-time Commonwealth's

attorney of a civil client's husband might well suggest to the public some

inappropriate conduct in the public office. Accordingly, while there is no

provision of the Virginia Code of Professional Responsibility which per se

disqualifies a part-time Commonwealth's attorney from the criminal

prosecution, the provisions of DR:9-101 and Ethical Consideration 9-2

merit consideration and exercise of sound judgment by the part-time

Commonwealth's attorney." (See also EC:8-10)


Committee Opinion January 7, 1988