Can a Commonwealth's Attorney prosecute an embezzlement case where a former law-firm colleague was a shareholder and agent of the victim?

Plain-English summary

A full-time Commonwealth's Attorney inquired about a case predating his term. Before he took office, the prior Commonwealth's Attorney had indicted two individuals for embezzlement and conspiracy; the victim was a local store whose principal shareholder, X, had been employed at the inquiring attorney's law firm. While they worked together, the inquiring attorney knew there were charges against two individuals for embezzlement (without specifics) and knew X served as the store's registered agent. After the embezzlement was discovered, X (acting as both attorney and shareholder) and the other owners negotiated with the insurer, which agreed to pay the store $25,000; the insurer then indicated it would pursue the alleged embezzlers civilly on a subrogation claim. The inquiry asked whether the Commonwealth's Attorney could prosecute the two defendants.

The committee stated that LE Op. 1046 appeared to be dispositive of the inquiry. As the committee note records, under LE Op. 1046 the prosecution would be proper if the lawyer could rebut the presumption that he had acquired confidential information from the law-firm employee.

Currency note

This opinion was issued in 1988, 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. As the committee note observes, current Rule 1.11(d) would allow the representation if the lawyer were never "personally and substantially" involved in the matter while in private practice. 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 Treat this page as historical context, not current guidance.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 Commonwealth's Attorney prosecute a case connected to a former law-firm colleague?

A: Under this 1988 opinion, the committee said LE Op. 1046 was dispositive: the prosecution would be proper if the prosecutor could rebut the presumption that he had acquired confidential information from the former colleague.

Q: How would current rules treat the question?

A: Per the committee note, current Rule 1.11(d) would allow the representation if the lawyer was never personally and substantially involved in the matter while in private practice.

Background and rules framework

The opinion turned on the conflict analysis of LE Op. 1046, applying the former Code's conflict provisions (Canon 5 / DR 5-105) to a prosecutor whose former law-firm colleague was connected to the victim. The current analog for former-government and former-private-practice conflicts is Rule 1.11, the counterpart of ABA Model Rule 1.11.

Citations and references

Rules of Professional Conduct:

• Former Virginia Code conflict provisions (Canon 5; DR 5-105)
• ABA Model Rule 1.11 (special conflicts for current and former government officers)

Other opinions cited:

• Virginia LE Op. 1046: rebutting the presumption of shared confidences (dispositive here).

See also

• VA LEO 1320: Prosecutor Testifying in Office's Case
• VA LEO 1250: Ex-Prosecutor's Firm and His Old Cases
• VA LEO 1241: Ex-Prosecutor Partner and a Civil Case

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1058.pdf

Original opinion text

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

Committee Opinion
March 18, 1988
LEGAL ETHICS OPINION 1058

CONFLICT OF INTEREST COMMONWEALTH’S ATTORNEY.

You advise that you are the full-time Commonwealth's attorney in your area. Prior to taking office, two individuals were indicted by the former Commonwealth's attorney on charges of embezzlement and conspiracy. The victim of this crime was a store located in your area. A principal shareholder of that store was X, who was employed at your law firm. During the time that you and X were employed by the same law firm, you were aware that there were charges against two individuals for embezzlement, but were unaware of any specifics. You were also aware that X served as the registered agent for the store at the time that you and X worked at the same law firm. After the embezzlement was discovered, X and the other owners of the store began negotiating with the insurance company to recover a portion of the embezzled inventory. The insurance company agreed to pay the store $25,000 on the claim of embezzling inventory. X acted both as an attorney and as a shareholder in the negotiations with the insurance company. The insurance company now is indicating that they are going to pursue civilly against the two alleged embezzlers on a claim of subrogation. You wish to know whether or not you may prosecute the two defendants on the charge of embezzlement and conspiracy. L E Op. No. 1046 appears to be dispositive of your inquiry. Committee Opinion March 18, 1988 Legal Ethics Committee Notes. – Under L E Op. No. 1046, the prosecution would be proper if the lawyer could rebut the presumption that the lawyer had acquired confidential information from the law firm employee. Rule 1.11(d) would allow this representation if the lawyer were never “personally and substantially” involved in the matter while in private practice.