Can a state legislator who is an associate at a law firm vote on legislation the firm is drafting for a client whose business is affected by the bill?

Plain-English summary

A member of the Virginia General Assembly was an associate at a law firm. The firm had been engaged to provide legal services on legislation significant to a client's business interests, including drafting proposed legislation for the upcoming session. No firm member had lobbied for the legislation, the associate/legislator had voted against a similar bill the prior session, and the firm believed the associate should abstain to avoid any appearance of impropriety. The committee was asked whether the Code permitted the associate/legislator to vote when the legislation reached the floor.

The committee identified DR 9-101(C) (a lawyer shall not state or imply an ability to improperly influence a tribunal, legislative body, or public official), DR 8-101(A)(1) (a lawyer holding public office shall not use the position to obtain a special advantage in legislative matters for a client where the lawyer knows or it is obvious the action is not in the public interest), and DR 7-101 (zealous representation of a client's lawful objectives), with EC 8-8 and EC 7-1. While lobbying by any firm member on the client's behalf would be improper while the associate holds office (LE Op. 1278), the committee found no similar per se impropriety in the mere representation of a client whose business is affected by the legislation.

The committee concluded that, provided neither the firm nor the associate/legislator leads the client to believe the legislative body will be improperly influenced, voting on the matter would not create an appearance of impropriety violating DR 9-101(C). As to DR 8-101(A)(1), it reasoned that "special advantage" means a direct and peculiar advantage for a specific client through action clearly inimical to the public interest (citing ABA Informal Op. 1182), so the legislator's vote would not violate that rule unless a special benefit accrued to the client beyond whatever benefit or detriment fell on the public at large. Finally, a public official's carrying out responsibilities to constituents does not itself violate the firm's duty of zealous representation (DR 7-101). The committee noted its opinion rested only on the Code and did not address the General Assembly Conflict of Interests Act or House rules.

Currency note

This opinion was issued in 1994, 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: Can a lawyer who serves as a legislator vote on a bill the lawyer's firm is handling for a client?

A: Under this 1994 opinion, yes. The committee concluded that representing a client whose business is affected by legislation creates no per se impropriety, so the legislator may vote, subject to the limits below.

Q: What would make such a vote improper?

A: The committee said a vote would violate DR 8-101(A)(1) only if it secured a special advantage for the client, a direct and peculiar benefit beyond what falls on the public at large, through action clearly contrary to the public interest, and would violate DR 9-101(C) if anyone led the client to believe the legislature could be improperly influenced.

Q: Could the firm lobby for the legislation while its associate sits in the legislature?

A: No. The committee noted, citing LE Op. 1278, that lobbying by any firm member on the client's behalf would be improper while the associate/legislator holds public office, even though mere representation is not.

Background and rules framework

The opinion interpreted former Virginia DR 9-101(C) (no implying improper influence over a legislative body), DR 8-101(A)(1) (public officials not using office for a client's special advantage against the public interest), and DR 7-101 (zealous representation), with EC 8-8 and EC 7-1. The improper-influence concern now corresponds to ABA Model Rule 8.4(e). The committee expressly limited its analysis to the Code, not the General Assembly Conflict of Interests Act (Va. Code § 2.1-639.30 et seq.) or House rules.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 9-101(C); DR 8-101(A)(1); DR 7-101; EC 8-8; EC 7-1 (Code of Professional Responsibility)
• ABA Model Rule 8.4(e) (implying improper influence over a government agency or official)

Statutes:

• Va. Code § 2.1-639.30 et seq. (General Assembly Conflict of Interests Act), referenced as outside the committee's analysis.

Other opinions cited:

• Virginia LE Op. 1278: lobbying by a firm member on a client's behalf is improper while the firm's associate holds legislative office.
• ABA Informal Op. 1182 (1971): "special advantage" means a direct and peculiar advantage clearly inimical to the public interest.

See also

• VA LEO 1718: Firm Before a Member's Governing Body
• VA LEO 1698: Ex-Commissioner Handling Zoning Cases
• VA LEO 1713: Prosecutor's Office Running an ASAP

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1611.pdf

Original opinion text

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

Committee Opinion
November 29, 1994
LEGAL ETHICS OPINION 1611

APPEARANCE OF IMPROPRIETY;
LEGISLATOR/LAW FIRM ASSOCIATE
VOTING ON MATTER RELATING TO
FIRM'S CLIENT; ZEALOUS
REPRESENTATION.

You have presented a hypothetical situation in which a member of the Virginia General
Assembly is an associate in a law firm. The firm was engaged by a client to provide legal
services in connection with legislation which was introduced during the past session,
which legislation is very significant to business interests of the client. The representation
includes drafting proposed legislation for the upcoming session.
Further, you indicate that no lobbying activities of any kind have been undertaken by
members of the firm in support of similar legislation and that the associate/legislator
voted against a similar bill during the preceding session. Finally, you indicate that the
firm believes strongly that the associate/legislator should abstain from voting on the
legislation being drafted by the firm on behalf of the client in order to avoid any
appearance of impropriety or voting against a client's interest on a substantial issue
affecting that client.
You have asked the committee to opine whether, under the facts of the inquiry, it is
ethically permissible under the Code of Professional Responsibility for the
associate/legislator to cast a vote when the legislation comes to the floor of the General
Assembly.
The appropriate and controlling disciplinary rules relative to your inquiry are:
DR:9-101(C) which prohibits a lawyer from stating or implying that he is able to
influence improperly or upon irrelevant grounds any tribunal, legislative body, or public
official;
DR:8-101(A)(1) which, in pertinent part, exhorts a lawyer who holds public office not
to use his public position to obtain, or attempt to obtain, a special advantage in legislative
matters for a client under circumstances where he knows or it is obvious that such action
is not in the public interest; and
DR:7-101 which requires that a lawyer not intentionally (1) fail to seek the lawful
objectives of his client through reasonably available means permitted by law and the
Disciplinary Rules, (2) fail to carry out a contract of employment entered into with a
client for professional services, or (3) prejudice or damage his client during the course of
the professional relationship.
Further, EC:8-8 encourages lawyers who are public officers to avoid engaging in
activities in which the lawyer's personal or professional interests are or foreseeably may
be in conflict with his official duties; and EC:7-1 urges that the duty of a lawyer, both to

Committee Opinion
November 29, 1994
his client and to the legal system, is to represent his client zealously within the bounds of
the law.
Although lobbying by any member of the firm on behalf of the client would be
improper while the associate/legislator hold public office [See LE Op. 1278], under the
facts you present, the committee is cognizant that no similar per se impropriety arises
through the mere representation of the client whose business is impacted by legislation
under consideration. Thus, provided that neither the firm nor the associate/legislator leads
the client to believe that the legislative body will be influenced improperly, the
committee is of the opinion that the associate/legislator's voting on the matter before the
legislature would not create an appearance of impropriety which would be violative of
DR:9-101(C).
The committee is of the view that, in order to constitute misconduct, the plain language
of DR:8-101(A)(1) requires that the associate/legislator attempt to secure a “special
advantage” which would not be “in the public interest”. As noted by the ABA Committee
on Ethics and Professional Responsibility, “special advantage” refers to a direct and
peculiar advantage [for a specific client] and . . . action [which is] clearly inimical to the
best interests of the public as a whole. Informal Op. 1182 (December 5, 1971). Thus, the
committee is of the opinion that the legislator's voting on the matter would not violate the
plain language of DR:8-101(A)(1) unless some special benefit would accrue to the firm's
client which would be beyond whatever benefit (or detriment) would accrue to the public
at large.
Finally, the committee opines that a public official's carrying out of his responsibility to
his constituency does not in and of itself violate his firm's responsibility to zealously
represent its client whose business interest may be negatively impacted by the legislator's
official actions. See DR:7-101.
The committee notes that its opinion is predicated solely on the Virginia Code of
Professional Responsibility and does not attempt to address any requirements of the
General Assembly Conflict of Interests Act, Va. Code § 2.1-639.30 et seq., the Rules of
the Virginia House of Delegates as adopted by the House, January 12, 1994, or
lawyer/legislator duties which fall outside of the attorney/client relationship.