Can a part-time assistant Commonwealth's attorney handle personal-injury cases in a jurisdiction where the office also prosecutes crimes, if separate offices and phone lines screen the two roles?

Plain-English summary

A newly elected Commonwealth's attorney planned to hire a trial lawyer as a part-time assistant Commonwealth's attorney. Because the new assistant would take a financial loss, the office wanted the assistant to keep a personal-injury practice. The inquiry asked whether the part-time assistant could handle personal-injury litigation when there had been a collateral criminal prosecution in the jurisdiction, and whether a set of internal safeguards, including separate offices and separate telephone lines, would make that permissible.

The committee drew on its prior opinions. LE Op. 594 had allowed a part-time Commonwealth's attorney or assistant to handle civil domestic-relations cases so long as the adversary party was not then the subject of criminal proceedings, and LE Op. 696 had found it improper for a part-time assistant Commonwealth's attorney to continue representing a party in a pending civil matter after a criminal charge was brought against either party to the civil proceeding, even where the assistant avoided involvement in the criminal prosecution. The committee found the proposed safeguards (its paragraphs A, B, and C) inconsistent with those opinions, especially LE Op. 696.

Applying DR 5-105, which prohibits employment involving actual or potential conflicting professional responsibilities, and DR 5-105(E), under which partners and associates of a disqualified lawyer are also disqualified, the committee disagreed with the inquiry's analysis. It opined that an artificial wall could not be erected within the office of the Commonwealth's attorney by providing separate telephone lines and separate offices. The committee notes record the modern framework: the Rules define "Firm" to include a Commonwealth's attorney's office, and Rule 1.11(b) bars the prosecutor who handled the criminal case, and members of that office, from a related civil case unless its requirements are met. The notes also cite Lux v. Commonwealth on a criminal defendant's due-process interest, observing that the appearance of impropriety alone does not deny due process and that a defendant is denied due process only when former counsel who joins a Commonwealth's attorney office is not effectively screened from the lawyers handling a related matter.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee notes describe the analysis under current Rule 1.11(b). 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 part-time assistant Commonwealth's attorney also handle personal-injury cases in the same jurisdiction?

A: Under this 1988 opinion, not where the civil matter is related to a prosecution the office handled. The committee read DR 5-105 and its imputation provision to disqualify the assistant and the rest of the office.

Q: Do separate offices and separate phone lines cure the conflict?

A: No. The committee opined that an artificial wall could not be erected within the Commonwealth's attorney's office through separate telephone lines and separate offices.

Q: Are the other lawyers in the office disqualified too?

A: Under DR 5-105(E), yes. The committee read partners and associates of the disqualified lawyer as also disqualified, and the committee notes apply the same imputation under current Rule 1.11(b).

Background and rules framework

The opinion interpreted former Virginia DR 5-105 (declining or withdrawing from employment that involves conflicting professional responsibilities) and DR 5-105(E) (imputation of one lawyer's disqualification to partners and associates). The committee notes map the question onto current Virginia Rule 1.11(b), the counterpart of ABA Model Rule 1.11 governing former and current government officers and employees, and apply the imputation concept reflected in Model Rule 1.10. The notes treat a Commonwealth's attorney's office as a "Firm" for imputation purposes.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-105 and DR 5-105(E) (conflicting professional responsibilities; imputed disqualification)
• Virginia Rule 1.11(b) / ABA Model Rule 1.11 (former and current government lawyers)
• ABA Model Rule 1.10 (imputation of conflicts within a firm)

Cases:

• Lux v. Commonwealth, 24 Va. App. 561, 484 S.E.2d 145 (1997), appearance of impropriety and due process; screening of former defense counsel who joins a prosecutor's office

Other opinions cited:

• LE Op. 594: part-time Commonwealth's attorney may handle civil domestic-relations cases if the adversary is not then under criminal proceedings
• LE Op. 696: improper to continue civil representation after a criminal charge is brought against a party to the civil proceeding

See also

• VA LEO 1038: Assistant Attorneys General Advocating and Advising the Same Board
• 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/1020.pdf

Original opinion text

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

Committee Opinion
January 21, 1988
LEGAL ETHICS OPINION 1020

ASSISTANT COMMONWEALTH’S
ATTORNEY – REPRESENTING CIVIL
CASES.

You advise that you have been elected to the position of Commonwealth's attorney in
your area effective January 1, 1988. You wish to hire a lawyer with trial practice as your
assistant Commonwealth's attorney. This attorney will experience a financial loss should
he accept your offer of employment. You wish to know whether or not it is possible for
the part-time assistant Commonwealth's attorney to engage in personal-injury litigation
when there has been a collateral criminal prosecution in the jurisdiction. You have
attached certain safeguards which you plan to implement in your office. You wish to
know whether or not the part-time assistant Commonwealth's attorney would be able to
engage in personal-injury litigation when there has been a collateral criminal
investigation in the jurisdiction once these safeguards are implemented.
LE Op. 594 states that “it is not improper for a part-time Commonwealth's attorney or
assistant Commonwealth's attorney to handle civil domestic relations cases so long as the
adversary party is not then the subject of criminal proceedings”.
LE Op. 696 states in pertinent part that “it is improper for a part-time assistant
Commonwealth's attorney to continue representation of a party in a previously pending
civil matter after a criminal charge is brought against either party to the civil proceeding
although the part-time assistant Commonwealth's attorney avoids involvement in said
criminal prosecution” (emphasis added).
The above-cited Legal Ethics Opinions, especially LE Op. 696, are inconsistent with
paragraphs A, B and C of your proposal.
Disciplinary Rule 5-105 prohibits a lawyer from employment involving actual or
potential conflicting professional responsibilities. Under DR:5-105(E), partners and
associates of the disqualified party are also disqualified. The Committee disagrees with
the submitted analysis concerning these code provisions. The Committee does not believe
that an artificial wall can be erected within the office of the Commonwealth's attorney by
providing for separate telephone lines and separate offices.
Committee Opinion
January 21, 1988
Legal Ethics Committee Notes. – The Rules of Professional conduct define “Firm” as
“a professional entity, public or private, organized to deliver legal services, or a legal
department, corporation or other organization.” This presumably includes a
Commonwealth’s Attorney’s Office. Rule 1.11(b) prohibits the prosecutor who handled
the criminal case from participating in the subsequent related civil case absent consent.
Where the prosecutor is the Commonwealth’s Attorney (as opposed to an assistant
commonwealth attorney), obtaining consent is problematic. The same rule prohibits

Committee Opinion
January 21, 1988
members of the law firm from handling the civil case unless the requirement of Rule
1.11(b) are met. The Ethics Committee believes that the rules prohibit a part-time
prosecutor and any assistants in the office from participating in a civil matter which is
related to a prosecution handled by that office unless Rule 1.11(b)’s requirements are
met.
Impact of appearance of impropriety on criminal defendant. – While an ethical rule
that strives to avoid the appearance of impropriety is a worthy standard for professional
conduct, a criminal defendant’s constitutional right to due process does not entitle him to
a prosecution free of such appearances. Lux v. Commonwealth, 24 Va. App. 561, 484
S.E.2d 145 (1997).
A criminal defendant is denied due process only when his former counsel joins a
Commonwealth’s Attorney office and is not effectively screened from contact with the
Commonwealth’s attorneys who are handling the defendant’s case on a related matter.
Lux v. Commonwealth, 25 Va. App. 561, 484 S.E.2d 145 (1997).