Does Virginia's Attorney General have to recuse himself from investigating election-law violations in an election he is running in?

Plain-English summary

In 2013 the General Assembly amended Va. Code § 24.2-104 to let the Attorney General investigate and prosecute election-law violations on his own authority, without first being asked by the State Board of Elections. Senator John Edwards asked the AG to clarify what happens when the AG himself is a candidate in that very election. Must the AG's whole office step aside?

The AG, Kenneth Cuccinelli, who was at the time running for Governor, answered: no, not automatically.

The constitutional and statutory backdrop. The Virginia Constitution puts no limit on how many terms an AG can serve, and the AG is permitted to run for other office. The General Assembly knew that when it amended § 24.2-104 in 2013. It also knew that commonwealth's attorneys, who have similarly broad election-enforcement powers, routinely stand for re-election themselves. The legislature did not write any blanket disqualification into the statute.

Why Rule 1.7 does not require automatic recusal. Rule 1.7 of the Virginia Rules of Professional Conduct addresses concurrent conflicts of interest. It applies to all lawyers, but the Rules explicitly recognize that government lawyers have different responsibilities than private-sector lawyers. The Attorney General has been expressly authorized by statute to represent multiple state clients in the same proceeding, including clients whose interests might otherwise look adverse. Combined with the constitutional grant of authority to enforce the election laws, this means there is no per se rule that requires the AG to recuse.

Why fact-specific analysis still matters. The opinion does not say the AG can stay involved in every case. Rule 1.7's "proximity and degree" test still applies. If a specific allegation puts the AG's own campaign in the line of fire (a complaint about ballots cast in the AG's own race, for example), the AG must consider whether his personal interest meaningfully limits his ability to act as a minister of justice. Rule 3.8 (the prosecutor rule) and Rule 1.11 (the government lawyer conflict rule) further constrain the AG.

Backup options if the AG recuses. The AG can hand the case to assistants inside the office who are insulated, appoint outside counsel under § 2.2-507(C), or refer it to the local commonwealth's attorney, who has concurrent authority. The State Board of Elections can ask the Governor to designate other counsel. The Governor can appoint special counsel under § 2.2-510 when he determines the AG's office cannot serve. None of those backstops disappears just because the AG keeps general statutory authority. They activate when the facts call for it.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 24.2-104 and the surrounding election-enforcement framework have been amended several times since 2013. The basic constitutional point about the AG running for office is unchanged.

Common questions

Did the AG really opine on his own conflict of interest?
Yes. Cuccinelli was the sitting AG and a candidate for Governor in 2013. He concluded that he and his office did not have to step aside from election-law enforcement in that election. The opinion notes that recusal decisions are case-by-case and acknowledges the political optics.

Could anyone challenge that conclusion in court?
A party with standing could try, typically in the context of a specific prosecution where the defendant moves to disqualify the AG's office. The opinion is advisory and not binding on courts.

What is § 24.2-104?
It is the statute giving the Attorney General authority to investigate and prosecute election-law violations. Before 2013 the AG needed a request from the State Board of Elections. After 2013, the AG could act on his own initiative.

What does Rule 1.7 require?
A lawyer cannot represent a client when the representation involves a concurrent conflict of interest. The conflict can arise from duties to another client or from the lawyer's own personal interests. The remedy is recusal or, in some cases, informed consent.

Why are government lawyers treated differently?
The Rules of Professional Conduct recognize that government lawyers often hold authority that, in private practice, would belong to the client. Statutes can give them powers and exceptions that private lawyers do not have. The AG, for instance, is authorized to represent multiple state agencies in the same transaction.

Who can step in if the AG does recuse?
Several options: a screened-off assistant attorney general, outside counsel hired by the AG, the local commonwealth's attorney with concurrent jurisdiction, or special counsel appointed by the Governor under § 2.2-510.

Does this apply to the AG running for re-election as AG?
Yes, the opinion says the analysis is the same. Running for re-election is constitutionally permitted, so the act of seeking re-election does not create an automatic conflict.

Background and statutory framework

• Va. Const. art. V, § 15: establishes the office of Attorney General; no term limit; AG eligible to run for other office.
• Va. Code § 24.2-104: AG authority to enforce election laws; 2013 Va. Acts ch. 768 gave the AG independent authority.
• Va. Code § 2.2-507: AG provides legal services for the Commonwealth; subsection (C) allows hiring of special counsel when impracticable for the AG.
• Va. Code § 2.2-510: Governor may appoint special counsel when the AG's office cannot serve, on a written exemption order.
• Va. Code §§ 2.2-3101 to 2.2-3131: State and Local Conflict of Interests Act.
• Va. Sup. Ct. R. Part 6, § II, Rules 1.7, 1.11, 3.8: conflict and prosecutor rules.

The interpretive moves:

• The Constitution permits the AG to run for office; the statutes do not create a blanket disqualification.
• The Rules of Professional Conduct accommodate the special role of government lawyers.
• Conflict analysis is fact-specific (the "proximity and degree" test).
• Adequate alternatives exist if recusal in a specific case is appropriate.

Citations

• Va. Const. art. V, § 15; art. VII, § 4
• Va. Code § 2.2-500
• Va. Code § 2.2-505
• Va. Code § 2.2-507
• Va. Code § 2.2-510
• Va. Code § 2.2-511
• Va. Code §§ 2.2-3101 through 2.2-3131
• Va. Code § 15.2-1626
• Va. Code § 24.2-104
• Va. Code § 24.2-422
• Va. Code § 24.2-946.3
• Va. Code § 24.2-1019
• Va. Code § 54.1-3909
• Va. Code § 54.1-3915
• Va. Sup. Ct. R. Part 6, § II, Preamble & Rules 1.7, 1.11, 3.8
• 2013 Va. Acts ch. 768
• 1978-79 Op. Va. Att'y Gen. 95
• Hladys v. Commonwealth, 235 Va. 145, 366 S.E.2d 98 (1988)
• Wilder v. Attorney Gen., 247 Va. 119, 439 S.E.2d 398 (1994)
• Sch. Bd. of Stonewall Dist. v. Patterson, 111 Va. 482, 69 S.E. 337 (1910)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-065_Edwards.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

October 18, 2013

The Honorable John S. Edwards
Member, Senate of Virginia
Post Office Box 1179
Roanoke, Virginia 24006-1179

Dear Senator Edwards:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the Attorney General and his office have a conflict of interest so as to require a recusal of the Office of the Attorney General from investigating and prosecuting alleged violations of election law, when the Attorney General is a candidate for public office in the same election that is under investigation.

Response

It is my opinion that there is no inherent conflict of interest presented, and, thus, no per se requirement that the Office of the Attorney General recuse from investigating and prosecuting alleged violations of election law, when the Attorney General is a candidate for public office in the same election that is under investigation. It is my further opinion that any potential recusal of that Office must be determined on a case-by-case basis.

Applicable Law and Discussion

The Constitution of Virginia sets forth the qualifications of the Attorney General.[1] The Attorney General's duties are as prescribed by law, and there are no limits on the terms of the Attorney General.[2] Section 2.2-507 provides that the Attorney General shall perform "[a]ll legal service in civil matters for the Commonwealth" except as otherwise provided by statute.[3] If it is "impracticable" for such legal service to be rendered by the Attorney General or one of his assistants, he may employ special counsel.[4] Moreover, the Governor may employ special counsel when the "Attorney General's office is unable to render such service," upon issuing an exemption order "stating with particularity the facts and reasons leading to the conclusion that the Attorney General's office is unable to render such service."[5]

Section 2.2-511 sets forth the Attorney General's authority in criminal cases.[6] The Attorney General's duties in that regard include those found in § 24.2-104, which, in relevant part, provides that

A. The Attorney General shall have full authority to do whatever is necessary or appropriate to enforce the election laws or prosecute violations thereof. The Attorney General shall exercise the authority granted by this section to conduct an investigation, prosecute a violation, assure the enforcement of the elections laws, and report the results of the investigation to the State Board [of Elections].[7]

In 2013, the General Assembly amended the statute to provide independent authority to the Attorney General so that, without involvement of the State Board of Elections, he should have authority to enforce the election laws or prosecute violations thereof.[8] Prior to this amendment, the Attorney General could exercise this authority only upon a request from the State Board of Elections.[9] The effect of the 2013 amendments is to permit the Attorney General to take the actions specified in § 24.2-104(A) without need for a prerequisite request from the State Board of Elections.

When the General Assembly amended § 24.2-104, it did so knowing that under the Constitution of Virginia ("Constitution") the Attorney General could run for reelection.[10] An Attorney General running for reelection would present the exact same issue that is presented herein, that of an official having law enforcement authority related to an election wherein he also is running as a candidate.[11]

Possessing authority to enforce the election laws while running for reelection is not a new development in the Commonwealth. The commonwealth's attorney for each Virginia locality, who is subject to popular election,[12] has broad enforcement powers in election matters, including, but not limited to, defending a petition that challenges a voter registration denial;[13] investigating and prosecuting violations of the Campaign Finance Disclosure Act of 2006;[14] and handling "any complaint or allegation of unlawful conduct" under Title 24.2.[15] The authority of the commonwealth's attorney in election matters, even in years in which the commonwealth attorney is seeking reelection, has not been statutorily conditioned upon a request from the State Board of Elections or local electoral board.[16]

Notwithstanding these express provisions and grants of authority, you inquire whether Rule 1.7 of the Rules of Professional Conduct governing attorneys requires automatic recusal of the Office of the Attorney General if he is a candidate for election. The General Assembly has delegated to the Virginia Supreme Court the power to establish rules and regulations "[p]rescribing a code of ethics governing the professional conduct of attorneys."[17] The Code makes clear, however, that rules promulgated by the Supreme Court may not conflict with statutory law.[18] The Rules of Professional Conduct, moreover, make clear at the outset that the ethical duties of government lawyers may differ from those of lawyers in the private sector.[19] While the Rules apply to all lawyers, "under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships."[20]

Rule 1.7(a) provides as follows:

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.[21]

The Comments to Rule 1.7 provide guidance with respect to application of this Rule and state that "[l]oyalty and independent judgment are essential elements to the lawyer's relationship to a client."[22] The Comments further state that "[r]esolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation."[23] The conflicts of interest referred to in Rule 1.7 include those that would affect the representation of a client in relation to the lawyer's "business or personal interests."[24] Where, as here, alleged conflicts may arise in a context other than litigation, they are difficult to assess, and the "question is often one of proximity and degree."[25]

In recognition of the unique role of government lawyers, the Attorney General is expressly permitted to

represent personally or through one or more of his assistants any number of state departments, institutions, divisions, commissions, boards, bureaus, agencies, entities, officials, courts, or judges that are parties to the same transaction or that are parties in the same civil or administrative proceeding and may represent multiple interests within the same department, institution, division, commission, board, bureau, agency, or entity.[26]

Thus, the General Assembly has legislated that the Attorney General may represent more than one client in a transaction, notwithstanding the general terms of Rule 1.7.[27]

There are other Rules of Professional Conduct that might apply to the Attorney General's authority under § 24.2-104. Rule 1.11 provides certain special rules to prevent a government lawyer from engaging in "activities in which his personal or professional interests are or foreseeably may be in conflict with official duties or obligations to the public."[28] Rule 3.8 further governs the conduct of the Attorney General when acting as a prosecutor, requiring that he not file charges not supported by probable cause and that he "has the responsibility of a minister of justice and not simply that of an advocate."[29]

Applying the above-referenced Rules of Professional Conduct to the question presented, it is clear that there is no inherent conflict of interest requiring recusal. The Constitution expressly provides that the Attorney General serve a four-year term and may run for reelection and does not prohibit him from running for Governor. The Code prescribes various duties to the Attorney General, including enforcement of election laws under § 24.2-104(A). The 2013 changes to the law do not provide for any form of blanket disqualification by the Attorney General if he is on the ballot. Thus, with respect to this statutory provision, it is the duty of the Attorney General to determine if the specific factual scenario at issue would affect his ability to ethically represent the Commonwealth. Clearly, this question of "proximity and degree" must be answered on a case-by-case basis.[30]

I note that ample safeguards exist should an issue develop involving an Attorney General's own campaign for reelection or for election to another office. The General Assembly was aware of such potentialities when it amended § 24.2-104. First, the commonwealth's attorney in the relevant jurisdiction has concurrent jurisdiction to enforce the election laws.[31] In addition, the State Board of Elections has authority to "request the Attorney General, or other attorney designated by the Governor for such purpose, to assist the attorney for the Commonwealth of any jurisdiction in which election laws have been violated," and upon unanimous request, "[t]he Attorney General, or the other attorney designated by the Governor, shall have full authority to do whatever is necessary or appropriate to enforce the election laws or prosecute violations thereof."[32] Also, the Attorney General can appoint outside counsel or request that a commonwealth's attorney review a matter.[33] Moreover, the Governor can appoint special counsel if a factual scenario develops in which he determines such action to be necessary.[34]

Thus, with respect to the exercise of the authority granted by § 24.2-104(A), should ethical considerations warrant that the Attorney General recuse his Office from the investigation or prosecution of a specific alleged electoral law violation, the General Assembly has provided adequate alternatives for the Commonwealth's legal representation.

In summary, there is no legal or ethical requirement that a sitting Attorney General who is on the ballot for an election disqualify himself or his Office from performing all of the Office's statutory responsibilities pursuant to § 24.2-104. If, regarding an application of § 24.2-104 to a specific set of facts, the Attorney General determines that he cannot appropriately perform the statutory function, he may recuse himself, leaving the task to either the appropriate lawyers in the Office or outside counsel appointed by the Office. Necessarily, such a determination is fact specific and cannot be made in the abstract.[35]

Conclusion

Accordingly, it is my opinion that there is no inherent conflict of interest presented, and, thus, no per se requirement that the Office of the Attorney General recuse from investigating and prosecuting alleged violations of election law, when the Attorney General is a candidate for public office in the same election that is under investigation. It is my further opinion that any recusal of that Office must be determined on a case-by-case basis.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] "An Attorney General shall be elected by the qualified voters of the Commonwealth at the same time and for the same term as the Governor; and the fact of his election shall be ascertained in the same manner. No person shall be eligible for election or appointment to the office of Attorney General unless he is a citizen of the United States, has attained the age of thirty years, and has the qualifications required for a judge of a court of record. He shall perform such duties and receive such compensation as may be prescribed by law, which compensation shall neither be increased nor diminished during the period for which he shall have been elected. There shall be no limit on the terms of the Attorney General." VA. CONST. art. V, § 15.

[2] Id. See also VA. CODE ANN. § 2.2-500 (2011).

[3] Section 2.2-507(A) (Supp. 2013).

[4] Section 2.2-507(C); see also VA. CODE ANN. § 2.2-510 (Supp. 2013).

[5] Section 2.2-510(1).

[6] Section 2.2-511 (2011).

[7] VA. CODE ANN. § 24.2-104(A) (Supp. 2013).

[8] See 2013 Va. Acts ch. 768.

[9] See § 24.2-104(B) and (C). Section 24.2-104(C) also requires certain actions by the Attorney General when "[t]he attorney for the Commonwealth or a member of the electoral board of any county or city ..." makes a request in writing that makes certain allegations made under oath. The Attorney General's duties under this section predated the 2013 amendment to § 24.2-104.

[10] When the legislature passes a new law, or amends an old one, it is presumed to act with full knowledge of the law as it stands. Sch. Bd. of Stonewall Dist. v. Patterson, 111 Va. 482, 487-88, 69 S.E. 337, 339 (1910).

[11] The fact that no Attorney General has run for reelection since the 1980s does not alter the legal analysis of this Opinion.

[12] VA. CONST. art. VII, § 4; VA. CODE ANN. § 15.2-1626 (2012).

[13] Section 24.2-422 (2011).

[14] Section 24.2-946.3 (2011).

[15] Section 24.2-1019 (2011).

[16] See 1978-79 Op. Va. Att'y Gen. 95, 97.

[17] VA. CODE ANN. § 54.1-3909 (2013).

[18] Section 54.1-3915 (2013) ("Notwithstanding the foregoing provisions of this article, the Supreme Court shall not promulgate rules or regulations prescribing a code of ethics governing the professional conduct of attorneys which are inconsistent with any statute.").

[19] Va. Sup. Ct. R. Part 6, § II, Preamble.

[20] Id.

[21] Id., Rule 1.7; in addition, subparagraph (b) sets forth certain exceptions to the general rule applicable to attorneys in private client-lawyer relationships.

[22] Id. at n.1.

[23] Id. at n.9.

[24] Id. at n.10.

[25] Id. at n.26.

[26] VA. CODE ANN. § 2.2-507(A).

[27] See also Hladys v. Commonwealth, 235 Va. 145, 148-49, 366 S.E.2d 98, 100 (1988).

[28] Va. Sup. Ct. R. Part 6, § II, Rule 1.11, n.1.

[29] Id., Rule 3.8, n.1.

[30] The consideration of any given factual scenario would include reference to any applicable provisions of the State and Local Conflict of Interests Act. VA. CODE ANN. §§ 2.2-3101 through 2.2-3131 (2011 & Supp. 2013). See especially § 2.2-3103 (2011).

[31] See supra notes 11-13, and accompanying text.

[32] Section 24.2-104(B).

[33] Section 2.2-507(C).

[34] See § 2.2-510. See also Wilder v. Attorney Gen., 247 Va. 119, 439 S.E.2d 398 (1994) (upholding power of the Governor to appoint special counsel in situations where he determines that the Attorney General is unable to render services).

[35] For example, if there were an allegation of voter fraud regarding three votes in a House of Delegates race decided by one vote and all of the statewide races were decided by 100,000 vote margins, there would not even be a colorable claim that the Attorney General or his Office could be conflicted out of performing the functions outlined in § 24.2-104.