LEGAL ETHICS OPINION #1669 PART-TIME COUNTY ATTORNEY AS: PART-
TIME PUBLIC DEFENDER; PRIVATE
DEFENSE COUNSEL
You have asked the committee to opine as to the propriety of a
part-time County Attorney 1) acting as a part-time Assistant Public
Defender; 2) acting as defense counsel to private clients in
criminal cases, including or excluding accepting conflicts
appointments in criminal matters where the County Attorney assists
the Board of Supervisors in reviewing the annual budgets of the
Sheriff and the Commonwealth's Attorney; or 3) accepting
appointments to defend persons on allegations of contempt for
failure to pay child support brought by the Division of Child
Support Enforcement (DCSE) when the County Attorney represents the
local Department of Social Services (DSS).
The appropriate and controlling disciplinary rules relative to your
inquiry are DR 5-105(A) which prohibits an attorney from accepting
employment if the exercise of his independent professional judgment
in behalf of a client will be or is likely to be adversely affected
by acceptance of the proffered employment, unless, under DR 5-
105(C) it is obvious that the attorney can adequately represent the
interests of each and each client consents after full and adequate
disclosure and; DR 8-101(A)(1) which prohibits an attorney holding
public office from using his public position to obtain, or attempt
to obtain, a special advantage in legislative matters for himself
or for a client under circumstances where he knows or it is obvious
that such action is not in the public interest.
Although the Committee has issued a number of opinions regarding
the extent to which a part-time local government attorney may
represent private parties (LEOs 581, 610, 843) it has never
addressed the propriety of a part-time County Attorney
simultaneously representing criminal defendants as a part-time
Assistant Public Defender. Typically the County Attorney
represents the local government in civil and administrative matters
and does not prosecute crimes as those are prosecuted by the
Commonwealth's Attorney. Thus, for example, a part-time county
attorney who is not responsible for prosecuting traffic violations
may represent personal injury plaintiffs in accidents involving
traffic violations. Legal Ethics Opinion 581. The Committee
believes it would be improper under DR 5-105(A) for the Assistant
Public Defender to undertake representation of criminal defendants
if the County is the alleged victim of such crimes. Moreover, if
the County Attorney's Office is charged with the responsibility of
prosecuting local ordinances, i.e., violations of building codes or
local ordinances concerning zoning, health, environment, etc., then
the part-time County Attorney/Assistant Public Defender could not
represent parties accused of violating such local ordinances. DR
5-105(A); Legal Ethics Opinion 605 (former county attorney may not
represent defendant in a special use permit violation case when he
had been the county attorney at the time the county initiated the
action, caused the suit to be filed, and was aware of its
progress). In addition, the committee is of the opinion that a
conflict under such circumstances cannot be cured by consent, since
it is not obvious that he can adequately represent the interests of
each. DR 5-105(C).
Therefore, while it is nor per se improper for a part-time County
Attorney to also serve as a part-time Assistant Public Defender,
the committee believes there may be circumstances where conflicting
multiple representations might occur. However, if the particular
case involves the criminal defense of a party who is not adverse to
any of the governmental entities represented by the County
Attorney, then it would not be improper for the Assistant Public
Defender/County Attorney to represent such a party.
Your second inquiry raises the issue of a conflict, or the
appearance of same, in that the County Attorney's duties include
advising the Board of Supervisors with regard to the budget,
including appropriations for County law enforcement and
contribution or subsidy of compensation for law enforcement
officers including an assistant Commonwealth's Attorney. If the
County Attorney is also a part-time Public Defender, the appearance
of a conflict may exist if an attorney serving in both capacities
were to give legal advice to the Board concerning law enforcement
funding issues in such a way as to gain advantage for himself or a
client whom he represents as an Assistant Public Defender. DR 8-
101(A)(1).
The attorney serving in this dual capacity as described in your
hypothetical may very well choose to avoid the appearance of
impropriety by recusing himself from participation in any budget
items or issues impacting directly on the funding of law
enforcement agencies. However, the appearance of impropriety by
itself is too vague a standard, in the committee's opinion, to
conclude that a violation of DR 8-101(A)(1) would occur in the
facts you present. The preparation and publication of a county
budget is for informative and fiscal planning purposes only and is
not an appropriation. Items or expenses contemplated by a proposed
budget cannot be paid out until the governing body makes the
appropriation for such contemplated expenditure. Va. Code 15.1-
162. The County Attorney is not a member of the governing body and
therefore does not vote on the appropriations. Therefore, the
committee believes that the facts you present do not create a
conflict under DR 8-101(A)(1).
With regard to your third inquiry, the committee believes that it
would not be per se improper if the part-time County Attorney, in
his dual capacity as a part-time Assistant Public Defender, were to
accept by appointment the defense of persons brought into court by
DCSE on criminal contempt charges arising out of the failure to pay
child support. This assumes, of course, that the particular case
brought by DCSE did not involve the Department of Social Services
in way such that the interests of DSS and the defendant charged
with contempt are conflicting. The committee reaches this
conclusion based on the premise that DCSE is not an entity which is
represented by the County Attorney.
[DRs 5-105(A), 5-105(C), 8-101(A); LEOs 581, 605, 610, 843; Va.
Code 15.1-162]
Committee Opinion
April 1, 1996
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