Is it a conflict of interest for one assistant attorney general to prosecute a case before a state regulatory board while a second assistant attorney general advises that same board?

Plain-English summary

A private attorney represented a client before a professional regulatory board. One assistant attorney general (AAG No. 1) presented evidence against the client, while a second assistant attorney general (AAG No. 2) sat with the board during the evidence, advised it during deliberations, and read the board's decision into the record. The client and the private attorney objected that having two lawyers from the Office of the Attorney General both advocating against, and advising, the board on the same case raised fairness and conflict-of-interest concerns. The opinion reconsidered LE Op. 944.

The committee opined that the arrangement did not violate the Code of Professional Responsibility. It found DR 5-105(C) and (E) inapplicable because the assistant attorneys general were not representing multiple clients; both were representing the same client, the board. The committee located the Attorney General's authority in Article V of the Virginia Constitution and Code section 2.1-121, which directs the office to render all legal service in civil matters for state boards and agencies. It adopted the Attorney General's representations that no single AAG serves both advocate and advisor roles, that the two AAGs neither collaborate nor communicate about a case, and that they are supervised by different lawyers. To the extent LE Op. 944 was inconsistent, the committee overruled it.

The committee separately addressed the lay perception of unfairness, citing the Washington Supreme Court's standard in The Matter of Johnson that quasi-judicial proceedings are valid only if a reasonable, prudent, and disinterested observer would conclude the hearing was fair, impartial, and neutral. While holding nothing violated the Code, the committee strongly suggested precautions to diminish the appearance of unfairness: the advising AAG should not attend the informal hearing, should be excused during deliberations except to answer a specific procedural question, the two AAGs should not collaborate or communicate about a case, and they should be supervised by different lawyers. It cautioned that the two-AAG arrangement comes very close to an appearance of unfairness and advised the Attorney General to use extreme caution and avoid any possibility of collusion.

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. 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: Is it a conflict for two government lawyers from the same office to advocate and advise the same board on one case?

A: Under this 1988 opinion, no. The committee found no conflict because both assistant attorneys general represented the same client, the board, so the multiple-client prohibition of DR 5-105(C) and (E) did not apply.

Q: What precautions did the committee suggest to preserve fairness?

A: The committee strongly suggested the advising lawyer stay out of the informal hearing, be excused during deliberations except to answer a specific procedural question, that the two lawyers not collaborate or communicate about a case, and that they be supervised by different lawyers in the office.

Q: Did this opinion change an earlier one?

A: Yes. The committee overruled LE Op. 944 to the extent it was inconsistent with this opinion.

Background and rules framework

The opinion interpreted former Virginia DR 5-105(C) and (E), which addressed a lawyer's representation of multiple clients with potentially differing interests and the imputation of that disqualification to associated lawyers. The committee read the rule as keyed to multiple clients and found it inapplicable where both lawyers served one client. The opinion also quoted the Preamble to the ABA Model Rules of Professional Conduct, which recognizes that lawyers under a state attorney general's supervision may be authorized to represent several government agencies in intragovernmental controversies in circumstances where a private lawyer could not represent multiple private clients.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-105(C) and (E) (multiple-client representation and imputed disqualification)
• ABA Model Rules of Professional Conduct, Preamble (government lawyers representing multiple agencies)

Statutes:

• Va. Const. art. V, § 25 (duties of the Attorney General)
• Va. Code § 2.1-121 (legal service for the Commonwealth and its boards)
• Va. Code §§ 54-187, 54-189.1, 9.6-14:1 et seq. (Administrative Process Act; board procedures)

Cases:

• In re Johnson, 99 Wash. 2d 466, 663 P.2d 457 (1983), standard for a fair, impartial, and neutral quasi-judicial hearing

Other opinions cited:

• LE Op. 944: overruled to the extent inconsistent with this opinion

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/1038.pdf

Original opinion text

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

Committee Opinion
January 26, 1988
LEGAL ETHICS OPINION 1038

CONFLICT OF INTEREST: ASSISTANT
ATTORNEY GENERAL.

LE Op. 1038 is the reconsideration of LE Op. 944.
A private attorney represented a client before a professional regulatory board
(hereinafter the board). Assistant Attorney General No. 1 presented evidence against the
restoration of Private Attorney's client's license. The private attorney presented evidence
on behalf of the client. The board went into executive session to deliberate. Assistant
Attorney General No. 1, Private Attorney and his client were excused. During
deliberations, the board was advised by Assistant Attorney General No. 2. Assistant
Attorney General No. 2 sat with the board during the presentation of evidence and
read the decision of the board into the record. Private Attorney's client has raised the
issue of fairness and Private Attorney has raised the issue of conflict of interest because
two attorneys from the Office of the Attorney General were advocating and advising the
board on the same case.
Based upon the described factual situation the first question is whether a conflict of
interest exists when Assistant Attorney General No. 1 serves as an advisor to the board
during an administrative hearing.
The Committee finds that the authority of the Attorney General's office rests in Article
V, § 25 of the Constitution of Virginia, which states that the Attorney General of Virginia
"shall perform such duties...as may be prescribed by law." Those duties are set forth in §
2.1-121 of the Code of Virginia, which prescribes that the Attorney General render and
perform "all legal service in civil matters for the Commonwealth, the Governor and every
state department, institution, division, commission, board, bureau, agency, entity, official,
court or judge including the conduct of all civil litigation in which any of them are
interested. ..." /1
The Committee adopts the following factual representation as the procedure employed
by the Office of the Attorney General when serving professional boards in administrative
hearings.
Upon receipt of a complaint or other information which might constitute a basis for
action against a licensee pursuant to § 54-187 of the Code of Virginia, the staff of the
board investigates the matter and, as appropriate, presents its report to a committee of the
board. That committee, in accordance with the Administrative Process Act [Sections 9.614:1 and 9.6-14:11] and § 54-189.1 of the Code of Virginia may, after notice, conduct an
informal conference with the licensee in an effort to determine whether the matter can be
resolved by consent. Only one assistant attorney general attends the informal conference
as an advisor of the committee.
If the informal conference does not result in a resolution of the matter by consent, or,
should the committee so recommend, the matter proceeds to a formal hearing under §

Committee Opinion
January 26, 1988
9.6-14:12 of the Administrative Process Act. At this hearing, an assistant attorney general
acts as a presenter of the board's case, either to a hearing officer or to the board or to both
sitting together. At that hearing, or later when the board considers the hearing officer's
findings, another assistant attorney general acts as counsel to the board during its
deliberations.
In addition, the Committee adopts the following representations by the Office of the
Attorney General:
1. That the Attorney General only presents the professional board's staff
or conference committee's case during the formal hearing.
2. That the Attorney General does not decide which cases to pursue.
3. That the Attorney General does not have the authority to resolve or to
settle any licensing matters.
4. That the two assistant attorney generals do not communicate or
collaborate with each other about a given case.
5. That no one assistant attorney general serve both roles (advocate and
advisor) before the board.
6. That the two assistant attorney generals are supervised by different
lawyers in the office.
The Committee opines that the representation by the Office of the Attorney General of
the various state boards as described herein does not violate the Code of Professional
Responsibility.
The Committee finds that DR:5-105(C) and (E) are not applicable to the factual
situation under consideration and no conflict of interest exists because the assistant
attorney general is not representing multiple clients. Both assistant attorney generals are
representing the same client -- the board.
Accordingly, the Committee finds that LE Op. 944 is hereby overruled to the extent it is
inconsistent with this opinion.
The second inquiry is based on the private attorney's client's concern regarding the
issue of fairness. The Committee is not unmindful that the arrangement between the
Attorney General and the board may appear improper to the lay person. The Washington
Supreme Court in The Matter of Johnson, 99 Washington 2d 466 at 464, 663 P.2d 457
(1983) determined that " proceedings before a quasi-judicial tribunal are valid only if a
reasonable, prudent and disinterested observer would conclude that all parties obtained a
fair, impartial and neutral hearing."

Committee Opinion
January 26, 1988
The Committee, however, believes that fairness must be preserved and displayed and
makes the following observations.
The board decides which cases to pursue, conducts the investigation and determines if
reasonable cause exists. It appears to the Committee that there is little, if any, need for the
assistant attorney general to be present for the informal hearing because he has not had
any involvement in the decision to initiate the case or participate in the investigation of
the case. The board is given wide discretion to receive evidence and consequently would
not require the presence of the assistant attorney general at the informal hearing. The
board in conducting its informal hearing provides the party under review an opportunity
to hear and respond to the board's case. The board then issues its ruling which is not
binding unless the party agrees to accept it. If the party rejects the ruling, a formal
hearing is scheduled.
In order to diminish the lay person's perception of unfairness, the Committee strongly
suggests that the assistant attorney general advising the board not be present at the
informal hearing. This would reinforce the idea that the assistant attorney general
performing the advocacy role would not have the opportunity to receive prior knowledge
of the facts from the assistant attorney general advising the board. This does not preclude
the board from requesting advice on procedural matters from the advising assistant
attorney general. The Committee believes that if the responsibility of the assistant
attorney general advising the board is to consult only on procedural matters, then the
need for his presence is not indispensable during the informal hearing.
If the party rejects the informal hearing, the board will schedule a formal hearing. The
same assistant attorney general who was present and advised the board at the informal
hearing advises the board at the formal hearing; and another assistant attorney general
advocates the board's position during the hearing. Once the assistant attorney general has
advised the board on procedural issues, it appears to the Committee that there is little
reason for his presence during the deliberation process. The assistant attorney general
advising the board should therefore be excused while the board deliberates unless the
board has a question requiring the advice of the assistant attorney general and only then
would his presence be required for a response to that question and he should then again
be excused while the board deliberates. Once the board has reached its decision, the
chairman of the board, we believe, should render the opinion of the board to the party as
it is read into the record.
The Committee also strongly suggests that the following precautions be taken by the
Attorney General in order to diminish the appearance of unfairness:
1. That the two assistant attorney generals who advocate and advise the
boards should not collaborate or communicate with each other about a given
case; and
2. The assistant attorney generals be supervised in their respective advocacy and
advisory functions by different lawyers in the Attorney General's office.

Committee Opinion
January 26, 1988
The Committee believes that if these guidelines are followed, fairness will be preserved
in this less than ideal situation. The Committee cautions that even though nothing within
this factual scenario violates the Code of Professional Responsibility, the arrangement of
providing to the professional boards two assistant attorney generals comes very close to
giving an appearance of unfairness and therefore the Committee advises the Attorney
General to use extreme caution and avoid any possibility of collusion.
Committee Opinion
January 26, 1988
FOOTNOTES
/1 The following excerpt from the Preamble of the ABA's Model Rules of Professional
Conduct also is enlightening:
"... [L]awyers under the supervision of [a state's attorney general] may be authorized to
represent several government agencies in intragovernmental legal controversies in
circumstances where a private lawyer could not represent multiple private clients. They
also may have authority to represent the "public interest" in circumstances where a
private lawyer would not be authorized to do so. These rules do not abrogate any such
authority."