LEO: Commonwealth's Attorney - Disclosure  LE Op. 1110


Commonwealth's Attorney - Disclosure - Appearance of Impropriety:

Part-Time Assistant Commonwealth Attorney Prosecuting Welfare

Fraud Cases on Behalf of DSS Also Representing Private Client

Before DSS.


August 1, 1988


You have advised that you are serving as a part-time assistant

Commonwealth's attorney and that some of your duties include prosecuting

welfare fraud cases brought before the Commonwealth attorney's office by

the county's Department of Social Services. In addition, you maintain a

private practice in which your services have been requested by a former

client to represent her before a Medicaid hearing officer regarding the

denial of Medicaid benefits on the issue of whether or not a trust fund is

a resource (the client is not, nor do you have any knowledge why she would

be, the subject of a future welfare fraud case).


You wish to know whether you may represent the Medicaid applicant before

a hearing officer and possibly later before the State Board of Social

Services; or will your duties as prosecutor for the Department of Social

Services preclude you from accepting such employment to the extent that

this may present a possible conflict of interest.


The Committee believes that DR:9-101(B) and (C), DR:8-101(A)(2), and

 DR:5-105(D) are the appropriate and controlling rules in this matter.

DR:9-101(B) and (C) state that an attorney shall not accept private

employment in a matter in which he had substantial responsibility while he

was a public employee; nor shall an attorney state or imply that he is

able to influence improperly or upon irrelevant grounds any tribunal,

legislative body, or public official. An attorney who is also a public

official should, at all times, comply with the provisions of Canon 9 and

Ethical Consideration 9-2 [ EC:9-2], maintaining his duty to clients or

the public while promoting public confidence in the integrity and

efficiency in the legal system and the profession to avoid even an

appearance of impropriety. DR:8-101(2) states that an attorney shall not

use his public position to influence, or attempt to influence, a tribunal

to act in his favor or in his client's favor; and DR:5-105(D) states

that a lawyer who has represented a client in a matter shall not

thereafter represent another person in the same or substantially related

matter if the interest of that person is adverse in any material respect

to the interest of the former client unless the former client consents

after disclosure.


While there are no legal ethics opinions directly on point with your

situation, LE Op. 843 opined that it was improper for a county attorney

charged with the duty of representing the county subdivision committee to

also represent a developer in a subdivision application before the

subdivision committee. The exception to this was if the county and

developer were in agreement after full disclosure and consent.


In addition, you have explained that your duties representing the

Department of Social Services involve matters substantially unrelated to

the Medicaid application matter before you; nor has this client been a

party to, nor in any way related to, your responsibilities as a public

employee. LE Op. 819 provides that it is not improper for an attorney to

commence an action on behalf of a client injured in an automobile accident

by the driver of a vehicle owned by the Virginia Department of Highways

and Transportation even though the attorney represents the department in

condemnation cases. ( DR:5-105(D)) Based upon the facts as you have

presented them, the Committee opines that the decision held in LE Op.

819 is dispositive of your inquiry.


Committee Opinion August 1, 1988