Can a Commonwealth's Attorney sit in a quasi-judicial role reviewing a grievance panel decision when he earlier served on the same agency's board and is close to the people involved?

Plain-English summary

A statute directed an elected Commonwealth's Attorney to serve in a quasi-judicial capacity, deciding whether a local agency grievance panel's decision (reinstating a terminated chief financial officer the panel believed was a retaliated-against whistle blower) was consistent with written policy. Ten years earlier, while in private practice, the prosecutor had served on the same agency's governing board and had worked closely with the present grievant during a board-ordered secret audit that led to the former director's resignation; the grievant had then acted as a whistle blower on the board's assurance of protection. The prosecutor had also had close contact with the current dispute, had recommended that a proposed panel member step aside, had declined to bring a related "stalking" prosecution, and was a friend of several people involved. The committee was asked whether it was proper for the prosecutor to serve in that quasi-judicial role.

The controlling rule was DR 5-101(A), which bars a lawyer from accepting employment if his professional judgment may be affected by his own personal interest, absent client consent after full disclosure; DR 5-105(D) (duties to a former client) and DR 4-101 (confidences and secrets) would also apply if the prior board association had risen to an attorney-client relationship.

The committee concluded that a DR 5-101(A) conflict had arisen from the cumulative effect of the prosecutor's prior service as a board director, his close personal relationships with several people involved, and his earlier involvement in the events leading to the grievance. Because the statute established no attorney-client relationship, the requisite client consent could not be obtained, so it would be improper for the prosecutor to serve. The committee added that heightened sensitivity to public perception of a public official's duties required appointment of a substitute prosecutor (citing LE Op. 1241, 1243, 1250). It also pointed, by analogy and without interpreting them, to Canon 2(B) of the Canons of Judicial Conduct and to prior opinions on serving as a hearing officer or board member while representing related clients (LE Op. 617, 826, 409, 1195).

Currency note

This opinion was issued in 1993, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations 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: Could the Commonwealth's Attorney sit in the quasi-judicial review here?

A: Under this 1993 opinion, no. The committee held that the cumulative effect of his prior board service, close personal relationships, and earlier involvement created a personal-interest conflict under DR 5-101(A) that barred his service.

Q: Why couldn't the conflict be cured by consent?

A: The committee held that because the statute creating the prosecutor's quasi-judicial role established no attorney-client relationship, there was no client who could give the consent that DR 5-101(A) requires.

Q: What did the committee say should happen instead?

A: It concluded that a heightened sensitivity to public perception of a public official's duties required that a substitute prosecutor be appointed.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(A) (personal-interest conflicts), DR 5-105(D) (duties to former clients), and DR 4-101 (confidences and secrets). These conflict principles are now carried in Virginia Rules 1.7 (concurrent conflicts), 1.9 (duties to former clients), and 1.11 (special conflict rules for current and former government officers and employees). The committee referenced Canon 2(B) of the Canons of Judicial Conduct only by analogy and expressly declined to interpret the judicial canons.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(A); DR 5-105(D); DR 4-101 (Code of Professional Responsibility)
• ABA Model Rule 1.7 (concurrent conflicts); Model Rule 1.9 (former clients); Model Rule 1.11 (government lawyers)

Other opinions cited:

• Virginia LE Op. 617, 826: improper to represent clients before an agency where the lawyer or firm also sits as a hearing officer for that agency.
• Virginia LE Op. 409, 1195: improper, in certain circumstances, to serve on a local government board while representing clients in matters related to that board's operations.
• Virginia LE Op. 1241, 1243, 1250: public perception of a public official's duties supports appointing a substitute.

See also

• VA LEO 1542: Prosecutor Pretrial Statements
• VA LEO 1594: Prosecutor Extrajudicial Statements
• VA LEO 1611: Lawyer-Legislator Voting on a Firm-Client Bill

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1538.pdf

Original opinion text

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

Committee Opinion
June 22, 1993
LEGAL ETHICS OPINION 1538

CONFIDENCES AND SECRETS –
CONFLICT OF INTEREST – PERSONAL
INTEREST AFFECTING
REPRESENTATION - FORMER CLIENT:
COMMONWEALTH'S ATTORNEY
MAKING DETERMINATION ON
COMMUNITY SERVICES BOARD
GRIEVANCE AFTER
COMMONWEALTH'S ATTORNEY HAS
SERVED ON BOARD.

You have presented a hypothetical situation in which an elected Commonwealth's
Attorney ("Prosecutor") has been petitioned pursuant to Virginia Code § 2.1114.5:1(D)(4)(d) /1 to determine whether a decision of an employee grievance panel
hearing a matter related to the termination of a local government agency employee is
appropriate as consistent with written policy. You indicate that the panel voted 2 to 1
to reinstate the chief financial officer of a governmental agency finding that, although
there may have been deficiencies in the previously highly-rated grievant's level of job
training and performance, there was compelling evidence to believe that his termination
was retaliatory because he and other employees were "whistle blowers". You comment
that it appears that the statute in question requires that the prosecutor serve in a quasijudicial capacity.
You further indicate that, ten years earlier, when the prosecutor was in private practice,
he served as a member of the agency's governing board and worked closely with the
grievant in a board-ordered secret audit of agency accounts which led to the resignation
of the agency's former executive director. The present grievant acted as a whistle blower
in that situation on the board's assurance that he would be protected from retaliation. You
advise that, at the conclusion of that case and of the prosecutor's service as a director, the
prosecutor and others recommended that the agency financial officer report directly to the
board rather than to the executive director of the agency. This change was never made.
After the inception of the current dispute, the grievant and two other grievants who had
been high-ranking employees of the agency protested to the prosecutor that a member of
the grievance panel chosen by them and the agency-named panel member to serve as a
third member of the panel was not an appropriate person, since he had served as board
chairman of the agency during some of the period touched on in the grievances, and was
himself head of an agency which had been employed by the grievant's agency. As a result
of this protest, the prosecutor recommended to the former chairman that he decline to
serve and he did not so serve. In addition, the grievant was in part accused of harassment
of a co-worker in these proceedings. With regard to that allegation, the prosecutor was
approached by that co-worker about initiating criminal prosecution of the grievant
and others for "stalking". The prosecutor felt prosecution was not merited under the
circumstances.

Committee Opinion
June 22, 1993
Finally, you advise that the prosecutor has had close contact with this case as it
developed, and has been a friend to several of the persons involved, including the current
chairman of the agency board.
You have asked the committee to opine whether, under the facts of the inquiry, it is
proper for the prosecutor to serve in this quasi-judicial capacity in light of his
professional obligations and his past close dealings with the parties and the agency
involved.
The appropriate and controlling disciplinary rule relative to your inquiry is DR:5101(A) which in pertinent part precludes a lawyer from accepting employment if the
exercise of his professional judgment on behalf of his client may be affected by his own
personal interest, except with the consent of his client after full and adequate disclosure
under the circumstances. In addition, DR:5-105(D), prohibiting a lawyer from
subsequently representing a client adverse to a former client (unless the former client
consents after full disclosure), and DR:4-101, requiring a lawyer to preserve the
confidences and secrets of a client, would be applicable should the prosecutor's prior
association with the local government agency have risen to the level of an attorney-client
relationship.
The committee notes that your inquiry deals with "quasi-judicial" responsibilities of the
prosecutor. Although it is beyond the purview of the committee to interpret the Canons of
Judicial Conduct, your attention is directed to Canon 2(B) which exhorts a judge not to
"allow his family, social or other relationships to influence his judicial conduct or
judgment".
The committee has previously opined that it would be improper for an attorney to
represent clients in administrative hearings when the attorney or other attorneys in his
firm, on other occasions, sits as a hearing officer in matters involving the same agency.
See LE Op. 617, LE Op. 826. In addition, the committee has previously opined that, in
certain circumstances, it would be improper for an attorney to serve on a board or
committee of a local government agency while simultaneously representing clients in
matters related to the operations of that board or committee. See LE Op. 409 (service on
school board's handicapped education committee while representing handicapped
children in special education matters) and LE Op. 1195 (service on housing board while
attorney's firm represents clients in eviction actions brought by the housing authority).
In the facts you present, the committee believes that a conflict of interest as
contemplated by the language of DR:5-101(A) has arisen as the cumulative effect of the
prosecutor's prior service as a director on the agency board, his close personal
relationship with several of the persons involved, and his previous involvement in the
events leading to the current grievance. Furthermore, since the statute under which the
prosecutor's services are requested does not establish any attorney-client relationship, the
committee is of the opinion that it would be improper for the prosecutor to serve in a
quasi-judicial capacity hearing the grievant's appeal to the panel decision since the

Committee Opinion
June 22, 1993
requisite client consent cannot be obtained. Finally, the committee believes that a
heightened sensitivity to public perception regarding the duties of a public official
requires that a substitute prosecutor be appointed. See LE Op. 1241, LE Op. 1243, LE
Op. 1250.