Can a firm defend a civil case when one of its partners prosecuted the same client in a criminal proceeding from the same incident?

Plain-English summary

An insurance carrier retained a law firm to defend an insured in a civil action arising from an automobile accident. During discovery, the firm learned that the assistant Commonwealth's attorney who had prosecuted the insured in the juvenile proceeding arising from the same accident had since joined the firm as a partner, a few months before the firm took the civil matter. That partner had never taken an active role in the civil defense and had no plans to do so. The firm asked whether it could continue the representation, whether any impropriety could be cured by consent, and if so, whose consent was needed.

The committee identified DR 9-101(B) as controlling: a lawyer must not accept private employment in a matter in which he had substantial responsibility as a public employee. It concluded that the firm's representation of the defendant in an action arising out of a former criminal proceeding prosecuted by a firm partner constitutes the appearance of impropriety. Although it believed neither the firm nor the partners had engaged in any unethical conduct, the committee held the firm's continued involvement would be improper because of the need for heightened sensitivity to public perception of a former public official's private practice. It concluded that no consent would cure the appearance of impropriety under DR 9-101(B) (citing also LE Op. 702).

Currency note

This opinion was issued in 1989, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), 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 allows a firm to avoid disqualification in certain circumstances by screening the former government lawyer, a departure from this opinion's no-consent-cure approach. 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 Treat this page as historical context, not current guidance.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: Does it matter that the former prosecutor partner stayed out of the civil case?

A: Under this 1989 opinion, no. The committee concluded the firm's representation in a matter arising from a criminal proceeding the partner had prosecuted creates an appearance of impropriety under DR 9-101(B), even though the partner took no active role.

Q: Can the parties consent to cure the conflict?

A: No. The committee held that no consent would cure the appearance of impropriety under DR 9-101(B), citing the need for heightened sensitivity to public perception of a former public official's private practice.

Background and rules framework

The opinion interpreted former Virginia DR 9-101(B) (no private employment in a matter in which the lawyer had substantial responsibility as a public employee). Successive government and private employment is now governed by Virginia Rule 1.11, with former-client conflicts under Rule 1.9; current Rule 1.11 permits screening in circumstances this opinion did not.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 9-101(B) (private employment after substantial public responsibility)
• ABA Model Rule 1.11 (former government lawyer); Model Rule 1.9 (former clients)

Other opinions cited:

• Virginia LE Op. 702: appearance of impropriety from a former public official's private practice.

See also

• VA LEO 1250: When an Ex-Prosecutor's Firm Must Step Aside
• VA LEO 1299: Former Government Lawyer vs. a Later-Revised Rule
• VA LEO 1430: Former Local-Government Lawyer and Firm Screening
• VA LEO 1538: Commonwealth's Attorney Quasi-Judicial Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1241.pdf

Original opinion text

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

Committee Opinion
May 2, 1989
LEGAL ETHICS OPINION 1241

APPEARANCE OF IMPROPRIETY – COMMONWEALTH’S ATTORNEY:
LAW FIRM REPRESENTING CLIENT IN
CIVIL ACTION WHEN
PARTNER/FORMER ASSISTANT
COMMONWEALTH’S ATTORNEY
PROSECUTED JUVENILE PROCEEDING
ARISING OUT OF THE SAME
INCIDENT.

You would like to have the Committee consider the propriety of a law firm's representation of a defendant in a civil action where a partner in that firm formerly acted as the prosecutor in the juvenile proceeding against the client arising out of the same accident which forms the basis of the claim being asserted in the current civil action.

The relevant facts surrounding this issue are as follows. The law firm has been retained by an insurance carrier to defend an insured who had been involved in an automobile accident approximately 1-1/2 years earlier. The firm entered an appearance for the insured and began actively pursuing his defense in the civil action. During the course of discovery, it came to the firm's attention that the Assistant Commonwealth's attorney who prosecuted the insured in the juvenile proceedings is an attorney who subsequently joined the firm as a partner several months prior to the firm's accepting the instant matter. The former Assistant Commonwealth's attorney/partner has never taken an active role in the defense of the insured in the civil matter and has no plans to do so.

You have inquired (1) whether it is improper for your firm to continue with the representation of the client under the circumstances described; (2) whether it is possible to cure the impropriety, if any, by obtaining the consent of the parties involved; and (3) if there is an impropriety which can be cured, whose consent is necessary.

The appropriate and controlling rule relative to your inquiry is DR:9-101(B), which provides that a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

While you have indicated that the partner/former Assistant Commonwealth's attorney has not been involved nor will he become involved in the defense of the civil action in question, the Committee is of the view that the law firm's representation of the defendant in an action arising out of a former criminal proceeding prosecuted by a partner of the firm constitutes the appearance of impropriety. While the Committee believes that neither the law firm nor any of the individual partners has engaged in any unethical conduct, the Committee believes that the firm's continued involvement in the case would be improper because of the need for a heightened sensitivity to public perception regarding the private practice of a former public official. No consent would cure the appearance of impropriety under the general prohibition of DR:9-101(B). (See also LE Op. 702)

Committee Opinion
May 2, 1989

Legal Ethics Committee Notes. – Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government lawyer.