LEO: Attorney-Client Relationship - Multiple  LE Op. 1167


Attorney-Client Relationship - Multiple Representation -

Unrepresented Party: Assistant Attorney General Representing the

State and an Unrepresented Party in the Transfer of Property.


April 7, 1989


You wish to know whether it is ethically permissible for an Assistant

Attorney General who represents the Virginia Department of Transportation

to assist a church in securing the authorization of a court for the

appointment of trustees to convey specified parcels of land to the

Commonwealth of Virginia for highway right-of-way purposes.


You advise that after the church and the negotiator for the Virginia

Department of Transportation reach an agreement concerning the conveyance,

the church adopts a resolution authorizing the Assistant Attorney General

to petition the Circuit Court to direct the elected trustees to transfer

the title of the real estate to the Commonwealth. You indicate further

that the church does not wish to expend monies to hire separate counsel.


Assuming the Office of the Attorney General is authorized to represent

private individuals, entities, or any members, agents, trustees or

employees of a private entity, the appropriate and controlling rules

relative to your inquiry are DR:5-105(A) and (C). The rules prohibiting

multiple representation provide that a lawyer shall decline proffered

employment if the exercise of his independent professional judgment in

behalf of his client will be or is likely to be adversely affected by the

acceptance of the proffered employment. Such multiple representation is

ethically permissible, however, only if it is obvious that the lawyer can

adequately represent the interest of each and if each consents to the

multiple representation after full and adequate disclosure of the possible

effect on the attorney's exercise of his independent professional judgment

on behalf of each.


The relation of attorney and client exists and one is deemed to be

practicing law whenever he or she furnishes advice or services which imply

possession and use of legal knowledge or skill, or, whenever one

undertakes to prepare legal instruments of any character for another who

is not his or her regular employer. The committee believes that the

preparation of the petition to the Circuit Court to confirm the election

of statutory trustees and to secure authorization from the court for said

trustees to convey title to all real property, described in the petition

to the Commonwealth of Virginia, is beyond the mere taking of pro forma

actions to effectuate the agreement previously reached between the church

and the Commonwealth's negotiator. Thus, the preparation of the petition

may be construed as creating an attorney-client relationship.


It is the opinion of the Committee that the Assistant Attorney General

must first be convinced that he can adequately represent the interests of

both the church and the Commonwealth. Assuming that adequate

representation can be provided, it is further the opinion of the Committee

that, under the facts as presented in your inquiry, it would not be

improper for the Assistant Attorney General to prepare the petition on

behalf of the church providing the church has directed him to do so after

consenting to such representation after full and adequate disclosure.


Where an attorney-client relationship is not created, the Committee has

previously opined that an attorney must advise an unrepresented party to

secure counsel, and inform the unrepresented party that he represents the

interests of his client which interest may be adverse to that of the

unrepresented party, where the attorney has prepared an agreement for the

unrepresented party's signature to relinquish title to various properties

under the terms of the agreement. (See DR:7-103; LE Op. 876)


Committee Opinion April 7, 1989