You have presented a hypothetical situation in which a member of
the Virginia General Assembly is an associate in a law firm.  The
firm was engaged by a client to provide legal services in
connection with legislation which was introduced during the past
session, which legislation is very significant to business
interests of the client.  The representation includes drafting
proposed legislation for the upcoming session.

Further, you indicate that no lobbying activities of any kind have
been undertaken by members of the firm in support of similar
legislation and that the associate/legislator voted against a
similar bill during the preceding session.  Finally, you indicate
that the firm believes strongly that the associate/legislator
should abstain from voting on the legislation being drafted by the
firm on behalf of the client in order to avoid any appearance of
impropriety or voting against a client's interest on a substantial
issue affecting that client.

You have asked the committee to opine whether, under the facts of
the inquiry, it is ethically permissible under the Code of
Professional Responsibility for the associate/legislator to cast a
vote when the legislation comes to the floor of the General

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)(l) which, in pertinent part, exhorts a lawyer who
     holds public office not to use his public position to obtain,
     or attempt to obtain, a special advantage in legislative
     matters for a client under circumstances where he knows or it
     is obvious that such action is not in the public interest; and
     DR 7-l0l which requires that a lawyer not intentionally (l)
     fail to seek the lawful objectives of his client through
     reasonably available means permitted by law and the
     Disciplinary Rules, (2) fail to carry out a contract of
     employment entered into with a client for professional
     services, or (3) prejudice or damage his client during the
     course of the professional relationship.  

Further, EC 8-8 encourages lawyers who are public officers to avoid
engaging in activities in which the lawyer's personal or
professional interests are or foreseeably may be in conflict with
his official duties; and, EC 7-l urges that the duty of a lawyer,
both to his client and to the legal system, is to represent his
client zealously within the bounds of the law. 

Although lobbying by any member of the firm on behalf of the client
would be improper while the associate/legislator holds public
office [See LEO #1278], under the facts you present, the committee
is cognizant that no similar per se impropriety arises through the
mere representation of the client whose business is impacted by
legislation under consideration.  Thus, provided that neither the
firm nor the associate/legislator leads the client to believe that
the legislative body will be influenced improperly, the committee
is of the opinion that the associate/ legislator's voting on the
matter before the legislature would not create an appearance of
impropriety which would be violative of DR 9-l0l(C).  

The committee is of the view that, in order to constitute
misconduct, the plain language of DR 8-l0l(A)(l) requires that the
associate/legislator attempt to secure a "special advantage" which
would not be "in the public interest".  As noted by the ABA
Committee on Ethics and Professional Responsibility, "'special
advantage' refers to a direct and peculiar advantage [for a
specific client] and ... action [which is] clearly inimical to the
best interests of the public as a whole."  Informal Op. ll82
(December 5, l97l).  Thus, the committee is of the opinion that the
legislator's voting on the matter would not violate the plain
language of DR 8-l0l(A)(l) unless some special benefit would accrue
to the firm's client which would be beyond whatever benefit (or
detriment) would accrue to the public at large.

Finally, the committee opines that a public official's carrying out
of his responsibility to his constituency does not in and of itself
violate his firm's responsibility to zealously represent its client
whose business interest may be negatively impacted by the
legislator's official actions.  See DR 7-l0l.

The committee notes that its opinion is predicated solely on the
Virginia Code of Professional Responsibility and does not attempt
to address any requirements of the General Assembly Conflict of
Interests Act, Va. Code 2.l-639.30 et seq., the Rules of the
Virginia House of Delegates as adopted by the House, January l2,
l994, or lawyer/legislator duties which fall outside of the
attorney/client relationship.

[DRs 7-101, 8-101(A)(1), 9-101(C); ECs 7-1, 8-8; LEO #1278; ABA
Informal Op. 1182 (Dec. 5, 1971)]

Committee Opinion
November 29, 1994