LEO: Appearance of Impropriety -  LE Op. 1241


Appearance of Impropriety - Commonwealth's Attorney: Law Firm

Representing Client in Civil Action When Partner/Former Assistant

Commonwealth's Attorney Prosecuted Juvenile Proceeding Arising

out of the Same Incident.


May 2, 1989


You would like to have the Committee consider the propriety of a law

firm's representation of a defendant in a civil action where a partner in

that firm formerly acted as the prosecutor in the juvenile proceeding

against the client arising out of the same accident which forms the basis

of the claim being asserted in the current civil action.


The relevant facts surrounding this issue are as follows. The law firm

has been retained by an insurance carrier to defend an insured who had

been involved in an automobile accident approximately 1-1/2 years earlier.

The firm entered an appearance for the insured and began actively pursuing

his defense in the civil action. During the course of discovery, it came

to the firm's attention that the Assistant Commonwealth's attorney who

prosecuted the insured in the juvenile proceedings is an attorney who

subsequently joined the firm as a partner several months prior to the

firm's accepting the instant matter. The former Assistant Commonwealth's

attorney/partner has never taken an active role in the defense of the

insured in the civil matter and has no plans to do so.


You have inquired (1) whether it is improper for your firm to continue

with the representation of the client under the circumstances described; (

2) whether it is possible to cure the impropriety, if any, by obtaining

the consent of the parties involved; and (3) if there is an impropriety

which can be cured, whose consent is necessary.


The appropriate and controlling rule relative to your inquiry is DR:9-

101(B), which provides that a lawyer shall not accept private employment

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

public employee.


While you have indicated that the partner/former Assistant Commonwealth's

attorney has not been involved nor will he become involved in the defense

of the civil action in question, the Committee is of the view that the law

firm's representation of the defendant in an action arising out of a

former criminal proceeding prosecuted by a partner of the firm constitutes

the appearance of impropriety. While the Committee believes that neither

the law firm nor any of the individual partners has engaged in any

unethical conduct, the Committee believes that the firm's continued

involvement in the case would be improper because of the need for a

heightened sensitivity to public perception regarding the private practice

of a former public official. No consent would cure the appearance of

impropriety under the general prohibition of DR:9-101(B). (See also LE

Op. 702)


Committee Opinion May 2, 1989




See also LE Op. 1243, LE Op. 1250, LE Op. 1261, LE Op. 1271, and LE

Op. 1371.