You have presented a hypothetical situation in which an attorney
seeks election as Commonwealth's Attorney in the same jurisdiction
where the attorney is employed as a public defender.

Under the facts you have presented, you have asked the committee to
opine as to: 1) whether the attorney can legally/ethically perform
as Commonwealth's Attorney if elected; 2) the propriety of the
attorney's continuing to act as public defender while campaigning
for Commonwealth's Attorney; 3) whether the attorney could
prosecute former clients, especially with the requirements of the
new Truth in Sentencing Act; and 4) whether, if the attorney cannot
prosecute former clients, the entire Commonwealth's Attorney's
office has a conflict.

The appropriate and controlling disciplinary rules relative to your
inquiry are DR 4-101(B)(1) and (2) which state that a lawyer shall
not reveal a client's confidences or secrets or use such
information to the disadvantage of the client; and DR 5-105(D)
which prohibits an attorney from representing a client adverse to
a former client if the legal matter being handled for the current
client is substantially related to the matter handled for the
former client, unless the former client consents after disclosure.

The obligation of an attorney to protect client confidences and
secrets continues after the termination of his employment. EC 4-6. 
Therefore, even if the attorney becomes a Commonwealth's Attorney
he must continue to safeguard the confidences or secrets of former
clients served by him in his capacity as a public defender.  Thus,
the attorney may not use, in his prosecution of cases for the
Commonwealth, confidences or secrets gained from the representation
of clients he served while employed as a public defender unless
those former clients consent after a full disclosure to them.  DR
4-101(B)(2), (3); DR 4-101(C)(1).

The committee has previously opined that unless the former client
consents, a lawyer cannot be adverse to a former client in a
substantially related matter, or if the lawyer learned relevant
confidences during the earlier representation.  Legal Ethics
Opinion #672.  However, if an attorney represents a client adverse
to a former client on a matter which is unrelated to the former
representation, there is no conflict under DR 5-105(D).  Legal
Ethics Opinion #933.  In addition, a Commonwealth's Attorney is not
disqualified under DR 5-105(D) simply because his former law firm
represents a material witness or party, if the Commonwealth's
Attorney had no involvement with the former client's case and is
thus capable of rebutting any presumption that he acquired
confidential information based on his relationship with his former
law firm.  Legal Ethics Opinion #1046.

If an attorney has a conflict under DR 5-105(D), the conflict is
imputed to all other attorneys in the same office or law firm.  DR
5-105(E).  Therefore, if a Commonwealth's Attorney must be
disqualified because of a conflict under DR 5-105(D), any assistant
in the Commonwealth's Attorney's office is vicariously disqualified
from prosecuting the case.  Legal Ethics Opinions #1020 and #1208. 

As to your first inquiry, the Committee recognizes that prospects
may exist for conflict, and thus disqualification of the
Commonwealth's Attorney because of his prior service as a public
defender.  However, as long as the attorney observes the
requirements of DR 5-105(D) and DR 4-101(B) on a case by case basis
subsequent to his or her election or appointment as Commonwealth's
Attorney, it would not be improper to seek the office of nor serve
as Commonwealth's Attorney.

With regard to your second inquiry, the Committee opines that there
is no per se impropriety if the attorney continues as public
defender while campaigning for Commonwealth's Attorney.  Should the
attorney become elected, however, he should not accept any cases
during the interim between public election and installation into
office which are likely to remain incomplete at the time he assumes
office.  Legal Ethics Opinion #1319.

In response to the third inquiry, as stated above in the cited
opinions, the attorney may not prosecute a former client on charges
which are substantially related to charges he handled on behalf of
the client as a public defender or if the attorney possesses
confidences or secrets of a former client which could be used
against the former client in the prosecution.  

As to your fourth question, if the Commonwealth's Attorney is
disqualified under DR 5-105(D) or because he possesses confidences
or secrets under DR 4-101, neither the Commonwealth's Attorney nor
an assistant in his office may prosecute the case.  DR 5-105(E);
Legal Ethics Opinions #1020 and #1619.

[DRs 5-105, 4-101; EC 4-6; LEOs 672, 933, 1020, 1046, 1208, 1319,

Committee Opinion
February 9, 1996