Can a Commonwealth's Attorney serve on the advisory board of a local Alcohol Safety Action Program, and can that program be administered out of the prosecutor's own office?

Plain-English summary

A Commonwealth's Attorney asked whether the local Alcohol Safety Action Program (ASAP) could be a component of his office and whether he could serve on the ASAP advisory board. The program was administered through the office, with hiring, salary, promotion, and dismissal of ASAP staff subject to the Commonwealth's Attorney's review, and the ASAP budget formed part of the office's budget. The committee analyzed the inquiry under DR 8-101(A)(2) (a lawyer holding public office not using the position to influence a tribunal for himself or a client) and DR 9-101(C) (not implying improper influence), guided by EC 9-1 and EC 9-2.

On the first question, the committee concluded it is not improper for the Commonwealth's Attorney to serve on the ASAP advisory board. Consistent with LEOs 1268 and 1682, a prosecutor or defense attorney may sit on a community board (such as Court Services or a Community Criminal Justice Board) as long as the board does not make determinations about specific individuals the attorney prosecutes, and provided the attorney protects client confidences (DR 4-101(A)), does not use the position to gain an advantage for a client (DR 8-101(A)), and does not state or imply an ability to influence the board or a tribunal improperly (DR 9-101(C)).

On the second question, the committee concluded it is improper for the ASAP to be administered through the Commonwealth's Attorney's office. The office's significant control over the program, combined with the program's funding from offenders' fees and from gifts and donations permitted by Va. Code § 18.2-271.2, could be perceived as influencing the office as a whole rather than merely supporting the program, implicating the state and local conflict-of-interests statutes (Va. Code § 2.1-639.4). Because laypersons could perceive that arrangement as improper and lose confidence in the legal system, the committee opined that administering the local ASAP program through the Commonwealth's Attorney's office is improper under the Code of Professional Responsibility.

Currency note

This opinion was issued in 1998, 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. The cited statutes may also have been renumbered or amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or requirement mentioned here.

Common questions

Q: Can a Commonwealth's Attorney sit on a local ASAP advisory board?

A: Under this 1998 opinion, yes. The committee held it is not improper, consistent with prior opinions allowing prosecutors on community boards that do not decide specific cases, so long as the attorney observes confidentiality and does not use the position for a client's advantage or imply improper influence.

Q: Can the ASAP program be run out of the prosecutor's office?

A: No. The committee concluded administering the program through the Commonwealth's Attorney's office is improper, given the office's significant control and the program's funding from offender fees, gifts, and donations, which could create an appearance of impropriety.

Q: What was the concern with the program's funding?

A: The program was funded from offenders' fees and could accept gifts and donations; the committee was concerned this could be perceived as influencing the prosecutor's office as a whole, implicating the conflict-of-interests statutes and diminishing public confidence.

Background and rules framework

The opinion was decided under Virginia's former Code of Professional Responsibility: DR 8-101(A)(2) (a public-office holder not using the position to influence a tribunal for himself or a client) and DR 9-101(C) (not implying improper influence), with EC 9-1 and EC 9-2 on public confidence. It references Va. Code § 18.2-271.2 (ASAP funding) and § 2.1-639.4 (conflict of interests). The modern analogues are Rule 8.4 and Rule 1.11 (government lawyers).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 8-101(A)(2), DR 9-101(C), DR 4-101(A); EC 9-1, EC 9-2 (Code of Professional Responsibility)

Statutes:

• Va. Code § 18.2-271.2 (Alcohol Safety Action Program funding, fees, gifts, and donations)
• Va. Code § 2.1-639.4 (State and Local Government Conflict of Interests Act)

Other opinions cited:

• Virginia LEOs 1268, 1682: a prosecutor or defense attorney may sit on a community board that does not decide individual cases.

See also

• VA LEO 1763: Firm Member on the Board Appeared Before
• VA LEO 1741: Prosecutors Advising Witnesses

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1713.pdf

Original opinion text

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

Committee Opinion
February 24, 1998
LEGAL ETHICS OPINION 1713

PROPRIETY OF ASAP PROGRAM
BEING COMPONENT OF
COMMONWEALTH'S ATTORNEY'S
OFFICE WITH COMMONWEALTH'S
ATTORNEY SERVING ON ASAP
ADVISORY BOARD.

You inquired about the ethical propriety of having the local Alcohol Safety Action Program (ASAP) included as a component of your office, and your serving on the ASAP Advisory Board. The local ASAP program is administered through the Commonwealth's Attorney's Office with control over the hiring, salary, promotion, and dismissal of ASAP employees subject to review by the Commonwealth's Attorney. Also, the ASAP budget is part of the Commonwealth's Attorney's Office budget, so monetary control of the program is exercised to some extent by the Commonwealth's Attorney. The appropriate and controlling disciplinary rules relative to your inquiry are DR:8101(A)(2), DR:8-102(4), and DR:9-101(C). DR:8-101(A)(2) states “A lawyer who holds public office shall not use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.” DR:9-101(C) states “A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official.” The ethical considerations of EC:9-1, and EC:9-2 also give guidance in this situation. EC:9-1 says “Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession.” EC:9-2 elaborates further saying On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. . . . While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession. The committee will review your inquiry in two parts: 1) is it improper for a Commonwealth's attorney to serve on the ASAP board; and 2) is it improper for the ASAP to be administered through the Commonwealth's Attorney's Office?

Committee Opinion
February 24, 1998
As to the first part of your inquiry, the committee has previously opined in LE Op. 1268 and LE Op. 1682 that it is not improper for a Commonwealth's attorney or a defense attorney to sit on the Board of Directors of a community's Court Services or the Community Corrections Resources Board or the Community Criminal Justice Board, as long as the Board does not make determinations regarding specific individuals prosecuted by the attorney. In such instances where a Commonwealth's attorney or defense attorney sits on a community board, the attorney must be careful to follow DR:4-101(A) and not reveal any client confidences or secrets; DR:8-101(A)(1) and (2) to not use his or her position on this board to obtain an advantage for a client; and DR:9-101(C) to make sure that the attorney does not state or imply to his or her client that the attorney can improperly influence another board member or any tribunal. As to the second part of your inquiry, the committee believes that due to the significant control the Commonwealth's Attorney's Office has over the local ASAP program, laypersons could perceive that as improper and thereby diminish the public's confidence in the legal system or the legal profession. Another problem with the local ASAP being administered from the Commonwealth's Attorney's Office is that under the ASAP program is funded from the fees of offenders assigned to the program with 10% going to the State Committee overseeing all of the ASAP programs. Since these funds can also include gifts and donations from public or private sources, as allowed under VA Code § 18.2-271.2(C)(4), this could be seen as influencing the Commonwealth's Attorney's Office as a whole instead of singly assisting the ASAP program. Also, under VA Code § 2.1-639.4 subsection (5) expressly prohibits a state or local employee from “accept[ing] any money, loan, gift, favor . . .” and under subsection (8): no officer or employee of a state or local government or advisory agency shall accept a gift from a person who has interests that may be substantially affected by the performance of the officer's or employee's official duties under circumstances where the timing and nature of the gift would cause a reasonable person to question the officer's or employee's impartiality in the matter affecting the donation. In view of these factors, the Committee opines that it is improper under the Code of Professional Responsibility for the Commonwealth's Attorney's Office to administer the local ASAP program. Committee Opinion February 24, 1998