Can a lawyer's partner, who as an assistant Commonwealth's attorney prosecuted a man for rape, now help sue that man civilly on behalf of the victim?

Plain-English summary

A lawyer was retained by a woman to bring a civil action against a man who had been convicted of raping her. The criminal trial had been prosecuted by an assistant Commonwealth's attorney who was now the inquiring lawyer's law partner. The inquiry asked whether the partner could assist in representing the plaintiff in the civil case against the man he had prosecuted.

The committee treated LE Op. 942 as dispositive. That opinion held it proper for a former assistant Commonwealth's attorney to represent a victim in a civil matter only if the attorney had not participated in the criminal prosecution of the opposing party. Because the partner had assisted in the criminal prosecution of the opposing party while serving as assistant Commonwealth's attorney, the committee opined that it would be improper for him to assist in the civil action against the same man. The committee also pointed to LE Op. 702. Its committee note records that current Rule 1.11 governs former government lawyers and that such a representation would require the government's consent or screening of the former government lawyer.

Currency note

This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note describes the analysis under current Rule 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former prosecutor take the civil side of a case he prosecuted criminally?

A: Under this 1987 opinion, no, where the lawyer personally participated in the criminal prosecution of the same opposing party. The committee read LE Op. 942 to allow the civil representation only when the lawyer had not participated in the prosecution.

Q: Does it matter that it was the lawyer's partner, not the inquiring lawyer, who prosecuted the case?

A: The committee analyzed whether the partner himself could assist and found it improper because the partner had participated in the prosecution. The committee note adds that current Rule 1.11 would require the government's consent or screening of the former government lawyer.

Background and rules framework

The opinion resolved the question by applying its own prior opinions, LE Op. 942 and LE Op. 702, on a former Commonwealth's attorney's later involvement in a related civil matter. The committee note maps the question onto current Virginia Rule 1.11, the counterpart of ABA Model Rule 1.11, which governs the duties of former government officers and employees and provides for consent or screening.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 1.11 / ABA Model Rule 1.11 (former government lawyers; consent or screening)

Other opinions cited:

• LE Op. 942: a former assistant Commonwealth's attorney may take a victim's civil case only if the lawyer did not participate in the criminal prosecution
• LE Op. 702: cited as additional authority

See also

• VA LEO 1020: Assistant Commonwealth's Attorney in Related Civil Cases
• VA LEO 1058: Commonwealth's Attorney Conflict From a Former Firm Colleague
• VA LEO 1250: Firm Disqualified by a Former Assistant Commonwealth's Attorney

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1012.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
December 10, 1987
LEGAL ETHICS OPINION 1012

LAW PARTNER–FORMER
COMMONWEALTH’S ATTORNEY.

You advise that you have been retained by a woman to bring a civil action against a
man convicted of raping her. The criminal trial against the man was prosecuted by a
Commonwealth's attorney who is now your law partner.
You wish to know whether it is proper for your law partner to assist you in representing
a plaintiff in a civil action against a man who was convicted of rape in a trial which was
prosecuted by your law partner in his former capacity as assistant Commonwealth's
attorney.
LE Op. 942 is dispositive of your inquiry. That opinion states in pertinent part that: "It
is proper for a former assistant Commonwealth's attorney to represent a victim in a civil
matter if the attorney had not participated in the criminal prosecution of the opposing
party."
Your partner did assist in the criminal prosecution of the opposing party when he
served as assistant Commonwealth's attorney. Therefore, the Committee opines that it
would be improper for your law partner to assist you in representing a plaintiff in a civil
action against a man convicted of rape in a trial which was prosecuted by your partner in
his former capacity as assistant Commonwealth's attorney. (See also LE Op. 702)
Committee Opinion
December 10, 1987
Legal Ethics Committee Notes. – Rule 1.11 deals with former government lawyers;
this representation would require the government’s consent or screening of the former
government lawyer.