Can a law firm defend criminal cases that a partner had substantial responsibility for while he was an assistant Commonwealth's attorney?

Plain-English summary

A law firm had hired the former assistant Commonwealth's attorney for a jurisdiction and then sought to defend three criminal cases there. In one, a DUI assigned to him for prosecution but never tried during his tenure; in the other two (an habitual-offender driving charge and a shooting-into-an-occupied-dwelling charge), his role had been reading the police report, summarizing its contents, and preparing a list of witnesses to be summonsed for the Commonwealth. He said he had no recollection of the facts, had not discussed the cases with the assigned prosecutor, and had made no court appearances. The sitting Commonwealth's attorney contended the former assistant had prepared the cases for preliminary hearings, exercised substantial responsibility, and in the first case discussed evidentiary issues.

The committee identified DR 9-101(B) as controlling: to avoid even the appearance of impropriety, a lawyer must not accept private employment in a matter in which he had substantial responsibility as a public employee. It distinguished LE Op. 303, which permits a former assistant's firm to defend cases that arose during his tenure only where he had no involvement in the case. Here, the committee concluded that the activities described did constitute sufficient responsibility to fall within DR 9-101(B), so it would be improper for the firm to defend the cases.

The committee pointed to LE Op. 1241, where it had held that a firm's continued representation arising out of a former criminal proceeding prosecuted by a firm partner constitutes the appearance of impropriety, and that no consent would cure that appearance under DR 9-101(B) given the heightened sensitivity to public perception of a former public official's private practice (citing also LE Op. 1012).

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: What counted as "substantial responsibility" here?

A: The committee concluded that reading the police report, summarizing it, preparing a witness list, and preparing cases for preliminary hearings amounted to substantial responsibility under DR 9-101(B), even though the lawyer said he had no recollection of the facts.

Q: Could the parties' consent cure the conflict?

A: No. Following LE Op. 1241, the committee said no consent would cure the appearance of impropriety under DR 9-101(B), given the heightened sensitivity to public perception of a former public official's private practice.

Q: Why didn't LE Op. 303 allow the representation?

A: The committee explained that LE Op. 303 permits a former assistant's firm to defend cases from his tenure only where he had no involvement in the case, and here his preparation activities meant he was involved.

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. 303: a former assistant's firm may defend tenure-era cases only where he had no involvement.
• Virginia LE Op. 1241; LE Op. 1012: appearance of impropriety not cured by consent.

See also

• VA LEO 1241: Ex-Prosecutor Partner and a Civil Case From the Same Incident
• VA LEO 1299: Former Government Lawyer vs. a Later-Revised Rule
• VA LEO 1430: Former Local-Government Lawyer and Firm Screening
• VA LEO 1478: Former Judicial Law Clerk and Substantial Responsibility

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1250.pdf

Original opinion text

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

Committee Opinion
July 25, 1989
LEGAL ETHICS OPINION 1250

COMMONWEALTH ATTORNEY CONFLICT OF INTEREST: PARTNER
OF LAW FIRM REPRESENTING
DEFENDANTS IN THE SAME
JURISDICTION IN WHICH ANOTHER
PARTNER OF FIRM WAS FORMER
ASSISTANT COMMONWEALTH
ATTORNEY.

You have asked the Committee to consider the propriety of the continued representation of criminal defendant by a partner of Law Firm A when the firm had recently hired the former assistant Commonwealth's attorney for the jurisdiction in which the criminal defendants would be prosecuted. You believe the following three situations may be governed by L E Op. No. 303 which provides that it is not improper for the present law firm of a former assistant Commonwealth's attorney to defend clients' cases that arose during the time that the attorney was associated with the Commonwealth's Attorney's Office, provided the attorney was not involved in the case while he was assistant Commonwealth's attorney.

The first situation involves the representation by the former assistant Commonwealth's attorney's present law firm, of a defendant charged with driving under the influence. The matter had been assigned to this assistant Commonwealth's attorney for prosecution but was never tried during his tenure in the Commonwealth's Attorney's Office. The second and third situations involve the representation of, (1) a defendant who has been indicated for operating a motor vehicle after having been declared an habitual offender, and (2) a defendant charged with shooting into an occupied dwelling. As part of his duties, the assistant Commonwealth's attorney read the police report, summarized its contents and prepared a list of any witnesses who needed to be summonsed on behalf of the Commonwealth. Your inquiry indicates that the former assistant Commonwealth's attorney states that this was the extent of his contact with the cases of the second and third situations, as he was not assigned to prosecute them. In all three situations you advise that the former assistant Commonwealth's attorney has no recollection of the facts of the case nor does he believe he ever had any discussions with the Commonwealth's attorney assigned to the cases concerning issues involved in the case, nor did he make any court appearances on behalf of the Commonwealth with regard to any of the cases described above. Your inquiry further states that the Commonwealth's attorney contends that your firm should be precluded from representing the defendants involved since he believes that the assistant Commonwealth's attorney prepared the cases for preliminary hearings, exercised substantial responsibility, and, in the first case, discussed evidentiary issues with the Commonwealth's attorney.

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

The Committee is of the view that based upon the facts as you have presented them, LE Op. 303 is not dispositive of the question since that Legal Ethics Opinion permits the law firm to defend clients' cases that arose during the time that the attorney was associated with the Commonwealth's Attorney's Office so long as the attorney had no involvement in the case while he was an assistant Commonwealth's attorney. (emphasis added) It appears to the Committee that the activities described as undertaken by the former assistant Commonwealth's attorney while in that position do constitute sufficient responsibility as to come under the proscription of DR:9-101(B). Therefore, based on the facts as presented, the Committee opines that it would be improper for the former assistant Commonwealth's attorney's current law firm to defend the clients' cases you have described.

The Committee would also direct your attention to LE Op. 1241, in which the Committee opined that a law firm's continued representation of a defendant in an action arising out of a former criminal proceeding, prosecuted by a partner of the firm when he was an assistant Commonwealth's attorney, constitutes the appearance of impropriety. The Committee further stated in that opinion that the firm's continued involvement in the case would be improper because of the need for a heightened sensitivity to public perception regarding private practice of a former public official. No consent would cure the appearance of impropriety under the general prohibition DR:9-101(B) under the circumstances. (See also LE Op. 1012)

Committee Opinion
July 25, 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.