Legal Ethics Opinion No. 1447

Appearance of Impropriety--Conflict of Interest--Public Official:
             Private Practice of Circuit Court Clerk

You have indicated that an active member of the Virginia State
Bar, who has been serving for many years as Clerk of the Circuit
Court in his county of residence, now wishes to become affiliated
with a law firm which has offices in both the county of the
Clerk's residence and an adjoining county in the same judicial
circuit.  The attorney/Clerk would be shown as "of counsel" on
the law firm's letterhead, would be included on the firm's
malpractice insurance policy, and would work on a schedule agreed
upon by all parties.  You have further indicated that the
schedule would not conflict with the schedule required by the
attorney's duties as Clerk and would include regular office
practice hours in both offices of the firm as well as some
research time.  In addition, certain office management projects
might be undertaken for the firm.  Finally, you have indicated
that, with the repeal of Virginia Code Section 54-45 in l988, no
statutory prohibition is known which would preclude this public
official, Clerk of a Circuit Court, from practicing law.  

You have asked the committee to opine as to three issues related
to the facts as presented.  Specifically, you have inquired (l)
whether it would be proper for a Clerk of the Circuit Court to be
listed as "of counsel" on the letterhead and other communications
of a law firm in the locality in which he is serving as Clerk;
(2) what limitations exist relative to the types of law practice
in which the Clerk could engage on behalf of the law firm; and
(3) whether a conflict of interest problem which arose that
prevented the Clerk from handling a certain case for the law firm
would also prevent the other attorneys in the firm from taking
that case.

The appropriate and controlling disciplinary rules relative to
your inquiry are 

     DR 9-l0l(C) which prohibits a lawyer from stating or
     implying that he is able to influence improperly or upon
     irrelevant grounds any tribunal, legislative body, or public
     official;

     DR 8-l0l(A)(3) which prohibits a lawyer from accepting
     anything of value from any person when the lawyer knows or
     it is obvious that the offer is for the purpose of
     influencing his action as a public official; 

     DR 5-l0l(A) which precludes a lawyer from accepting
     employment if the exercise of his professional judgment on
     behalf of his client may be affected by his own financial,
     business, property or personal interests, except with the
     consent of his client after full and adequate disclosure
     under the circumstances; and 

     DR 9-l0l(B) which prohibits a lawyer from accepting private
     employment in a matter in which he had substantial
     responsibility while he was a public employee.  [emphasis
     added] 

Further guidance is available through Ethical Consideration 8-8
which cautions, in pertinent part, that "[a] lawyer who is a
public officer, whether full or part-time, should not engage in
activities in which his personal or professional interests are orforeseeably may be in conflict with his official duties".
[emphasis added]

With regard your first inquiry as to the propriety of a Clerk of
the Circuit Court being listed as "of counsel" on the letterhead
and other communications of a law firm in the circuit in which he
is serving as Clerk, the committee has previously opined that it
is improper for a legislator-attorney (who is not precluded from
private practice) to allow his name to be continued in
association with his private law firm unless he actively
continues to practice as a member thereof.  See LEO #206.  

Under the facts you have provided, the committee is of the
opinion that it would be not be violative of DR 9-l0l(C) for the
attorney/Clerk to be  listed as "of counsel" on the letterhead
and other communications.  However, the committee is of the
further opinion that the attorney/clerk's identification as "of
counsel" to a specific firm may carry an inference that the firm
is able to improperly influence a public official.  Thus, the
committee cautions that if the attorney/clerk becomes affiliated
with a firm, the firm would run the risk of vicarious
disqualification in matters it may wish to pursue in the
attorney/clerk's circuit.  [see discussion infra]  


In addition, with regard to your second inquiry as to what
limitations exist relative to the types of law practice in which
the Clerk could engage on behalf of the law firm, the committee
has previously opined that it is improper for a Commonwealth's
Attorney to defend criminal cases in courts in which he
prosecutes, in any federal court in the Commonwealth, or in
courts where he does
not prosecute unless it is clear that there is no possible
conflict of interest, real or apparent, and that the prestige of
the office is in no way used in defense of the case.  See LEO
#l88.  As articulated in LEO #l88, the committee believes that
the attorney/Clerk's acceptance of employment in matters which
may involve activity in his own circuit represent a perception of
the exploitation of his public office.  In the circumstances you
posit, the committee opines that it would be improper for the
attorney/Clerk to accept any employment in a matter which has any
possibility of litigation, filing or other activity in his own
circuit since to do so may give rise to the implication of
accepting remuneration for the purpose of influencing his action
as a public official.  

Finally, you have inquired as to whether an ethical impropriety
which prevented the Clerk from handling a certain case for the
law firm would also prevent the other attorneys in the firm from
taking that case.  While the committee is cognizant that DR 9-l0l
and its component subparts contain no mandated imputed
disqualification, the committee opines, under the circumstances
presented herein, that when the attorney/Clerk is precluded from
personally or financially participating in any matter as a result
of his simultaneous service as Clerk, it would be per se improper
for other lawyers in the firm to assume such representation.  SeeDR 9-l0l(C); LEO #l88 ("Council continues to believe that a
Commonwealth's Attorney may defend only those criminal cases in
jurisdictions where he does not normally prosecute and under such
circumstances that there is no reasonable perception of the
exploitation of the prestige of his public office or a conflict
of interest between his public duties and his duties as a defense
attorney."  [emphasis added])

Committee Opinion
May 11, 1992