Legal Ethics Opinion No. 1465

Personal Interest Affecting Representation--Public Lawyer:
Commonwealth's Attorney Prosecuting Defendants Charged With
Trespassing on Property of Homeowners Association of Which He is
a Member 

You have presented a hypothetical situation in which a full-time
Commonwealth's Attorney lives in a subdivision surrounding a
private lake.  You indicate that the residents of the subdivision
have formed a voluntary homeowners association, of which the
Commonwealth's Attorney is a member.  The homeowners association
owns a parcel of land on the lake and plans to construct a
recreational facility, specifically a dock, for use of members of
the homeowners association without waterfront access from their
property. The Commonwealth's Attorney will not be using the dock,
since his property has its own lakefront access.

The use of the proposed recreational area to be built by the
homeowners association would be limited to members and their
guests.  You state that it is likely that there will be
trespassers and you indicate that it is the intention of the
homeowners association to prosecute any trespassers.  Finally,
you state that as Commonwealth's Attorney, it would be the
obligation of either the Attorney or his assistant to prosecute
anyone charged with a crime in the county.

You indicate that it is likely that, in the future, the
homeowners association will ask the Commonwealth's Attorney for
advice concerning the proper procedures to follow both in posting
the property and in seeking a warrant charging someone with
trespassing.   You state that this information, however, would be
exactly the same kind of information the Commonwealth's Attorney
provides to citizens everyday on various criminal laws, including
trespassing, the procedures to be followed in obtaining a
warrant, and the proper procedure for posting property.

You have asked the committee to opine whether, under the facts of
the inquiry, the Commonwealth's Attorney, by virtue of being
either a member or elected officer of the homeowners association,
is precluded from prosecuting persons charged with trespassing
upon the property of the homeowners association.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 5-101(A) which provides that a lawyer shall
not accept 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 8-102(A)(1) which states that a
public prosecutor or government lawyer in criminal litigation
shall refrain from prosecuting a charge that the prosecutor or
government lawyer knows is not supported by probable cause. 
Further guidance is available through Ethical Consideration
8-l02(A)(l) which exhorts that, because the prosecutor represents
the sovereign, restraint should be used in the discretionary
exercise of governmental powers, such as in the selection of
cases to prosecute.

The committee is of the view that the attorney's position
vis-a-vis the homeowners association, either as member or as
elected officer, constitutes a personal interest affecting
representation as articulated under DR 5-101(A).  However, the
committee recognizes that the impact of such personal interests
may be measured along a continuum, with the least significant
interests representing only a de minimis conflict.  Under the
facts you have presented, the committee opines that, since the
anticipated trespassing would take place on common property owned
by the association and not individually by the Commonwealth's
Attorney, there would be no impropriety in the Commonwealth's
Attorney prosecuting those charged with such trespassing.  

The committee cautions, however, that the attorney's membership
on the homeowners association may potentially impact on the
exercise of his prosecutorial discretion, as described by DR

Committee Opinion
June 9, 1992