Legal Ethics Opinion No. 1371

 Commonwealth's Attorney--Appearance of Impropriety--Conflict of
Interests: Former Assistant Commonwealth's attorney Accepting
Private Employment in Matter in which He Was Involved While a
Public Employee

You have asked the committee to consider the propriety of a
former Assistant Commonwealth's Attorney, who is now in private
practice, handling the following two matters in light of his
former employment.  

Attorney A was an Assistant Commonwealth's Attorney from April 1,
1984 through January 31, 1990.  In February and April 1984, a
defendant was indicted in the same jurisdiction on a total of
five felony charges and subsequently was tried and convicted of
three of the charges.  The defendant appealed to the Court of
Appeals but was denied an appeal at the time.  Recently, however,
after a petition for a writ of Habeas Corpus, the defendant was
granted a late appeal to the Supreme Court of Virginia and
Attorney A was appointed to represent the defendant on the
appeal.  You have indicated that the Petition for Appeal was
filed but the Chief Deputy Commonwealth's Attorney questioned
whether A could represent the defendant in his appeal since he
was an Assistant Commonwealth's Attorney during the time the
defendant was prosecuted.  Your letter of August 7, l990
reiterates that, in the above situation, A had nothing to do with
the prosecution of the case, never saw the file or, to the best
of his recollection, heard the case mentioned and had no
knowledge of the case in question until he was appointed to
represent the defendant on appeal. 

You have stated that the second matter in question involves a
defendant whom A prosecuted on a drug charge last year.  You
indicate that the court treated the defendant as a "first
offender," and placed him on probation without a finding of
guilt.  Recently, while still on probation, the defendant was
arrested on a new drug charge.  Attorney A was then appointed by
the court to represent the defendant in Circuit Court where his
case is now pending.  In addition, you have stated that the
defendant has given his informed consent to A's representation of

The appropriate and controlling Disciplinary 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.

The committee directs your attention to Legal Ethics Opinions
#1243 and #1250 which, in the committee's view, are dispositive
of your inquiry.  Both opinions cite examples of situations where
either a former Assistant Commonwealth's Attorney or
Commonwealth's Attorney has been precluded from representing an
individual in criminal matters in which the former prosecutor had
substantial responsibility as a public employee.

In Legal Ethics Opinion #1243, the former Commonwealth's Attorney
prosecuted a number of convictions against individuals for
Driving under the influence and driving on suspended operator's
licenses.  The committee found that, representing private
individuals in offenses of (1) driving after being declared an
habitual offender (2) second offense of DUI or driving on a
revoked license (3) civil proceeding to void an order declaring
an individual an habitual offender, and (4) proceedings to
declare an individual an habitual offender, all were considered
matters in which the former prosecutor would have had substantial
responsibility as a government employee.  Likewise, in Legal
Ethics Opinion #1250, the former Assistant prosecutor had been
assigned to a case that was never tried during his tenure in the
Commonwealth's Attorney's Office, but the Assistant had at least
engaged in discussions of the case on more than one occasion,
particularly with regard to some evidentiary issues.  In
addition, because of the assistant prosecutor's responsibilities
of handling the summarizing of the police reports and preparing
lists of witnesses who needed to be summonsed on behalf of the
Commonwealth, the committee opined that the former Assistant
prosecutor's activities constituted sufficient responsibility to
fall under the proscriptions of DR 9-101(B).  Thus, it would have
been improper for the former prosecutor's to continue to defend
the criminal matters described in that inquiry.

In response to the first fact situation you present, the question
of whether the matter is one in which the former Commonwealth's
Attorney had substantial responsibility is a factual
determination which should be made on a case-by-case basis. 
Under the limited facts presented in the inquiry, the committee
opines that if, as you have pointed out in your recent letter,
the former Assistant Commonwealth's Attorney had no involvement
or substantial responsibility over the defendant's earlier case,
the conclusion reached in prior Legal Ethics Opinion #303 is
applicable and therefore it would not be improper for Attorney A
to represent the defendant in the appeal.

In the second situation, the committee is of the opinion that the
representation of defendant in the pending drug charges by the
former assistant prosecutor would be per se improper since the
same defendant had been prosecuted on other drug charges by the
same attorney while he was a public employee.  The fact that the
defendant continues on probation for the earlier charge creates
an impermissible conflict since, in defending the client against
the current charge, Attorney A would be unable to simultaneously
defend him against any probation violation.  

Finally, the committee has also previously opined that consent
from the present client/defendant or the acting Commonwealth's
Attorney would not cure the appearance of impropriety under DR
9-101(B), because of the heightened sensitivity of public
perception regarding private practice of a public employee.  SeeLEO #1241, #1243 and #1250. 

Committee Opinion
October 1, 1990