LEO: Commonwealth Attorney - Conflicts of  LE Op. 1250


Commonwealth Attorney - Conflicts of Interest: Partner of Law

Firm Representing Defendants in the Same Jurisdiction in Which

Another Partner of Firm Was Former Assistant Commonwealth



July 25, 1989


You have asked the Committee to consider the propriety of the continued

representation of criminal defendant by a partner of Law Firm A when the

firm had recently hired the former assistant Commonwealth's attorney for

the jurisdiction in which the criminal defendants would be prosecuted. You

believe the following three situations may be governed by LE Op. 303

which provides that it is not improper for the present law firm of a

former assistant Commonwealth's attorney to defend clients' cases that

arose during the time that the attorney was associated with the

Commonwealth's Attorney's Office, provided the attorney was not involved

in the case while he was assistant Commonwealth's attorney.


The first situation involves the representation by the former assistant

Commonwealth's attorney's present law firm, of a defendant charged with

driving under the influence. The matter had been assigned to this

assistant Commonwealth's attorney for prosecution but was never tried

during his tenure in the Commonwealth's Attorney's Office. The second and

third situations involve the representation of, (1) a defendant who has

been indicated for operating a motor vehicle after having been declared an

habitual offender, and (2) a defendant charged with shooting into an

occupied dwelling. As part of his duties, the assistant Commonwealth's

attorney read the police report, summarized its contents and prepared a

list of any witnesses who needed to be summonsed on behalf of the

Commonwealth. Your inquiry indicates that the former assistant

Commonwealth's attorney states that this was the extent of his contact

with the cases of the second and third situations, as he was not assigned

to prosecute them. In all three situations you advise that the former

assistant Commonwealth's attorney has no recollection of the facts of the

case nor does he believe he ever had any discussions with the

Commonwealth's attorney assigned to the cases concerning issues involved

in the case, nor did he make any court appearances on behalf of the

Commonwealth with regard to any of the cases described above. Your inquiry

further states that the Commonwealth's attorney contends that your firm

should be precluded from representing the defendants involved since he

believes that the assistant Commonwealth's attorney prepared the cases for

preliminary hearings, exercised substantial responsibility, and, in the

first case, discussed evidentiary issues with the Commonwealth's attorney.


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

101(B) which provides that, to avoid even the appearance of impropriety, a

lawyer shall not accept private employment in a matter in which he had

substantial responsibility while he was a public employee.


The Committee is of the view that based upon the facts as you have

presented them, LE Op. 303 is not dispositive of the question since that

Legal Ethics Opinion permits the law firm to defend clients' cases that

arose during the time that the attorney was associated with the

Commonwealth's Attorney's Office so long as the attorney had no

involvement in the case while he was an assistant Commonwealth's attorney. (

emphasis added) It appears to the Committee that the activities described

as undertaken by the former assistant Commonwealth's attorney while in

that position do constitute sufficient responsibility as to come under the

proscription of DR:9-101(B). Therefore, based on the facts as presented,

the Committee opines that it would be improper for the former assistant

Commonwealth's attorney's current law firm to defend the clients' cases

you have described.


The Committee would also direct your attention to LE Op. 1241, in which

the Committee opined that a law firm's continued representation of a

defendant in an action arising out of a former criminal proceeding,

prosecuted by a partner of the firm when he was an assistant

Commonwealth's attorney, constitutes the appearance of impropriety. The

Committee further stated in that opinion that the firm's continued

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

heightened sensitivity to public perception regarding private practice of

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

impropriety under the general prohibition DR:9-101(B) under the

circumstances. (See also LE Op. 1012)


Committee Opinion July 25, 1989




See also LE Op. 1371.