LEO: Appearance of Impropriety  LE Op. 1266


Appearance of Impropriety - Commonwealth's Attorney - Conflicts

of Interest - Private Practice: Part-Time Commonwealth's Attorney

Personal Interest and Representation of Strikers in Civil Matters

Conflicting with Prosecutorial Duties.


June 14, 1989


You have advised that the Commonwealth's attorney in a jurisdiction which

is the site of a major labor dispute and strike also maintains a private

practice. You have further indicated that, in his capacity as a private

attorney, the Commonwealth's attorney has been retained by plaintiffs-

strikers in several personal injury and property damage claims currently

pending against the target company ("company") in the Circuit Court of the

county in which he has criminal prosecutorial responsibilities. He has

also filed a lawsuit against the company in the Virginia Supreme Court

seeking to address an important industry issue and enjoin industry

operations at one of the company's facilities. The facts as you have

stated them also indicate that, in his official capacity, the

Commonwealth's attorney is responsible for prosecuting large numbers of

misdemeanor and felony charges brought against strikers and their

sympathizers. Finally, the Commonwealth's attorney also has an equity

ownership interest in a non-union company. He became personally involved

in the particular labor dispute in question when he publicly criticized

actions of the state police, most of whom made the arrests for the

criminal violations in question, and when he appeared as a spectator at

court proceedings against the union displaying a lapel button supportive

of the union's cause.


You wish to know if it is proper for the Commonwealth's attorney to

continue to represent the Commonwealth in prosecutions against strikers

under the circumstances you have described.


Since his law firm represents one of the companies involved in this

matter, the chairman of this Committee has recused himself from

consideration of this opinion.


The Committee believes the appropriate and controlling disciplinary rules

relative to your inquiry are Disciplinary Rules DR:8-101, DR:8-102, DR:

5-101(A), DR:5-105(D) and DR:9-101. Disciplinary Rules 8-101 and 8-102

refer to the lawyer's action as a public official or as prosecutor

respectively, and the parameters of the attorney's ethical conduct in

those positions. Disciplinary Rule 5-101(A) precludes a lawyer from

accepting employment when his own financial, business, property or

personal interests may impair the exercise of his independent professional

judgment unless the client has consented after full and adequate

disclosure. Disciplinary Rule 5-105(D) precludes a lawyer from accepting

or continuing employment in the same or a substantially related matter if

the interests of that client are adverse in any material respect to the

interest of a former client unless the former client consents after

disclosure. Finally, Disciplinary Rule 9-101 prohibits an attorney from

engaging in any activity that would create even the appearance of an

impropriety regardless of whether there is any per se violation of any

other ethical prohibition.


The Committee is of the view that the Commonwealth's attorney's equity

ownership interests in a non-union company, together with the activities

as described in support of the union cause, constitute a financial,

business, property, or personal interest which, under the proscriptions of

 DR:5-101(A), would appear to affect the lawyer's professional judgment

on behalf of his client. Furthermore, the Committee believes the

Commonwealth's attorney's private employment as counsel for the plaintiffs-

strikers in their property damage and personal injury claims and in a law

suit to enjoin work at one of the company's facilities is not only

substantially related to the labor dispute from which certain alleged

criminal violations against the strikers arose, but also creates a

situation wherein the interests of the plaintiffs-strikers are materially

adverse with respect to the interest of the Commonwealth in the instant

criminal matters. Thus, it would be improper for the Commonwealth's

attorney to prosecute the charges against the strikers absent their prior

consent after full disclosure pursuant to DR:5-105(D).


While informed consent from the plaintiffs-strikers regarding the

prosecution of the criminal charges pending against them by the

Commonwealth's Attorney, who is also their private attorney, may cure the

potential conflict under DR:5-105(D), the Committee directs your

attention to LE Op. 1241 and LE Op. 1261 in which the Committee opined

that there is no specific, readily identifiable public client from whom

consent may be obtained in order to cure the prosecutor's personal

conflict with his official duties under DR:5-101(A). In those opinions,

it was the view of the Committee that the Commonwealth's Attorney's

involvement in the prosecutions in question would be improper in light of

the need for a heightened sensitivity to public perception of ethical

improprieties in the legal profession in general and of the government

lawyer in particular.


In addition, the Commonwealth's attorney's continued involvement in the

prosecutions would be improper in light of the overwhelming ethical

proscriptions of Disciplinary Rules 8-101, 8-102, and 9-101. A lawyer and,

in particular, one who is engaged in representing the public rather than

individual clients, must be keenly aware of the admonitions within the

Code of Professional Responsibility to avoid even the appearance of

impropriety; he must not place himself in a situation where his loyalties

are or may be perceived as being divided. (See LE Op. 1261; South

Carolina Bar Ethics Opinion No. 86-12 (undated)) The Committee also

directs your attention to U.S. v. Catalanotto, 468 F. Supp. 503 (D. Ariz.

1978), in which the entire staff of the local U.S. Attorney's Office was

disqualified from the prosecution of a criminal defendant against whom the

local U.S. Attorney had brought a private civil suit since the prosecution

could appear to the public to be retaliatory or coercive as a means of

forcing resolution of the disputed civil issues.


Whether the Commonwealth's attorney will be in violation of Canon 5, DR:

5-101(A) or Canon 9 if he proceeds with the prosecution of a strike-

related criminal warrant is a factual determination which may properly be

addressed only by the District Committee. However, under the facts

presented in your inquiry and based on the professional responsibilities

of a prosecutor to represent the interests of the citizenry of his

jurisdiction and promote the public safety of his jurisdiction as well as

his obligation to avoid the potential appearance of impropriety, the

Committee opines that it would be improper for the Commonwealth's attorney

to continue to participate in the prosecution of criminal charges against

the strikers because of his personal, professional and financial

involvement in collateral issues.


Committee Opinion June 14, 1989