Are Virginia prosecutors held to the same competence and diligence duties as other lawyers, and can an excessive caseload be an ethics violation?

Plain-English summary

An understaffed Commonwealth's Attorney's office assigns Assistant Commonwealth's Attorney Smith far more cases than state staffing standards contemplate, and his supervisor, while acknowledging the office could decline some cases, tells him not to turn victims away. In one hypothetical Smith, unable to prepare a rape case until two weeks before trial, misses the statutory 21-day DNA notice and the case is dismissed; in another, he handles a 100-case daily misdemeanor docket with no advance review and loses cases to an unsubpoenaed witness and an unfiled lab report. The committee was asked whether Smith violated Rules 1.1 and 1.3, and whether his supervisor violated Rule 5.1.

The committee holds that Rules 1.1 (competence, including adequate preparation) and 1.3 (diligence, including controlling one's workload and timely performance) contain no exceptions for prosecutors. The "Scope" section says the Rules apply to all lawyers in the public or private sector, and although a Commonwealth's Attorney may have additional authority, nothing creates a lower ethical standard. The client, the Commonwealth, must receive the same protection as any client. Drawing on Rule 1.16(a) and Arizona Ethics Opinion 86-4, the committee concludes a lawyer who carries a caseload so large as to preclude competent, diligent representation in each case violates the Rules, and may be required to decline or terminate cases; it notes Rule 3.8's "minister of justice" role is frustrated when a crushing caseload prevents proper case evaluation.

On supervision, the committee explains that Rule 5.1 requires managing lawyers to put measures in place for rule compliance and to supervise subordinate lawyers, and holds a supervisor responsible for ordered or ratified violations. A Commonwealth's Attorney who assigns a caseload so large as to preclude any hope of ethical representation would violate Rule 5.1. The committee declines to decide whether the two specific scenarios crossed the line, calling that a fact-specific question for a fact-finder, but stresses that representing the Commonwealth and carrying a heavy caseload provide no safe harbor from Rules 1.1, 1.3, or 5.1.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, prosecutors are bound by the same competence and diligence duties as all lawyers, and an excessive caseload is not a defense to a Rule 1.1 or 1.3 violation. Per the opinion, where a caseload precludes competent, diligent handling, Rule 1.16 may require declining or terminating cases, and a supervising Commonwealth's Attorney who assigns such a caseload may violate Rule 5.1. The committee leaves the fact-specific question of whether any particular caseload crosses the line to a fact-finder. The opinion notes the same analysis applies to overloaded public defenders and court-appointed counsel.

Common questions

Q: Do competence and diligence rules apply to prosecutors the same as other lawyers?

A: Yes. The opinion says Rules 1.1 and 1.3 contain no exception for prosecutors; the "Scope" section applies the Rules to all lawyers, and the Commonwealth as client gets the same protection as any client.

Q: Can a heavy caseload excuse a missed deadline or critical error?

A: No. The opinion says a large caseload and representing the Commonwealth provide no safe harbor; a lawyer who takes more cases than he can competently handle commits an ethics violation and may have to decline cases under Rule 1.16.

Q: Can a supervising Commonwealth's Attorney be responsible?

A: Yes. The opinion says Rule 5.1 requires managers to ensure rule compliance and supervise subordinates; assigning a caseload so large as to preclude ethical representation can violate Rule 5.1.

Q: Did the committee decide the two hypotheticals were violations?

A: No. The opinion declines to decide, treating whether a particular caseload or case was handled competently as a fact-specific question for a fact-finder rather than the committee.

Background and rules framework

The opinion interprets Rule 1.1 (Model Rule 1.1, competence, with Comment 5 on preparation), Rule 1.3 (Model Rule 1.3, diligence, with Comments 1 and 2 on workload and timeliness), Rule 1.16 (Model Rule 1.16, declining or terminating representation), and Rule 5.1 (Model Rule 5.1, responsibilities of managerial and supervisory lawyers), and references Rule 3.8 (Model Rule 3.8, the prosecutor as minister of justice). It adopts the reasoning of Arizona Ethics Opinion 86-4.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.1 / Virginia Rule 1.1 (competence; adequate preparation)
• Model Rule 1.3 / Virginia Rule 1.3 (diligence; controlling workload)
• Model Rule 1.16 / Virginia Rule 1.16(a) (declining or terminating representation)
• Model Rule 5.1 / Virginia Rule 5.1 (managerial and supervisory responsibilities)
• Model Rule 3.8 / Virginia Rule 3.8 (prosecutor's special responsibilities; Comment 1)

Statutes:

• Virginia Code Section 19.2-270.5 (notice of intent to present DNA evidence)

Other opinions cited:

• Arizona Ethics Opinion 86-4 (excessive caseload and Rules 1.1, 1.3, 1.16)

See also

• ABA Formal Op. 06-441: Excessive Indigent-Defense Loads
• ABA Formal Op. 467: Prosecutor Supervisory Duties
• VA LEO 1799: Prosecutor's Real-Estate Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1798.pdf

Original opinion text

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

Committee Opinion
June 30, 2004
As Revised
August 3, 2004
LEGAL ETHICS OPINION 1798

ARE COMMONWEALTH’S ATTORNEYS
HELD TO THE SAME ETHICAL
REQUIREMENTS AS OTHER ATTORNEYS?

You have presented two hypotheticals involving the Commonwealth’s Attorneys Office of
Metro County, which has seven assistants. Based on staffing standards developed by the state
agency that funds the Commonwealth’s Attorney’s Office, the office should have at least 3
additional prosecutors to handle the felony caseload of that jurisdiction. As a result, Assistant
Commonwealth’s Attorney Smith is assigned far more cases than the state standards suggest he
should be handling. Due to recent reductions in staff, Smith is also required to take over the
caseload of another prosecutor that left the office and the position cannot be filled. Because of
his heavy caseload, Smith does not have adequate time to prepare the cases he takes to trial.
Smith tells his boss, the Commonwealth’s Attorney, that his caseload is too high and that he does
not have the time needed to properly prepare his cases for trial. The Commonwealth’s Attorney
responds that he knows the office is understaffed, but given the current lack of funding, there is
nothing he can do about it. Despite his acknowledgement that the Commonwealth’s Attorney has
the authority to decline cases for prosecution, and is not mandated by statute to prosecute
misdemeanor cases, Smith’s boss tells him it would not be wise politically to say no to any
victim regardless of the caseload.
Hypothetical 1
Assistant Commonwealth’s Attorney Smith is assigned to prosecute Defendant Jones for rape.
As a direct result of his high caseload, Smith does not have time to start preparing the Jones case
for trial until two weeks prior to the trial date. When he reviews the file, he learns that the only
evidence against Jones is DNA that was discovered on the victim. By statute, the Commonwealth
is required to give the defense attorney 21 days notice of its intent to present DNA evidence. 1
This notice had not been provided. The trial judge refuses to grant a continuance, and the case is
dismissed.
Hypothetical 2
Assistant Commonwealth’s Attorney Smith is also assigned to handle the General District
Court misdemeanor docket. Although the Commonwealth’s Attorney is not required by statute to
appear and prosecute misdemeanor cases, Smith’s boss wants a prosecutor present for all cases
in which the defendant is represented by an attorney. The General District Court docket contains
approximately one hundred misdemeanor cases each day. Smith is not provided with any police
reports prior to trial for purposes of preparation, nor is he able to review the court papers to
verify that lab reports or breath test certificates have been properly filed. In most cases, his first
knowledge of the facts comes a few moments prior to the case being called for trial. In a
prosecution for misdemeanor possession of marijuana, Smith has the officer describe the arrest.
As Smith listens to the facts, he realizes that a necessary witness was not subpoenaed by the
officer. In addition, when he attempts to admit the lab analysis to prove the item seized was
marijuana, he learns that it has not been filed with the court seven days prior to trial as required
1

Virginia Code §19.2-270.5.

Committee Opinion
June 30, 2004
As Revised
August 3, 2004
by statute. As a result of the missing witness and the inadmissibility of the lab analysis, the case
is dismissed.
You have asked the Committee to opine, under the facts of the inquiry, the following
questions:
1) Has Assistant Commonwealth’s Attorney Smith violated Rule 1.1’s duty of competence
and Rule 1.3’s duty of diligence in the above hypothetical scenarios when his failure to do
that which is required is directly attributable to the exceptionally high caseload he is
required to carry?
2) Has the Commonwealth’s Attorney violated his supervisory duties under Rule 5.1 by
assigning Smith more cases than he can reasonably be expected to prosecute in a competent
and diligent manner?
Fundamental to your first question is whether Commonwealth’s Attorneys are held to the same
ethical requirements as other attorneys. Specifically, can the handling of a busy caseload ever
trigger a violation of Rules 1.1 and 1.3 by a Commonwealth’s Attorney?
Rule 1.1 requires an attorney to provide competent representation for his client; the rule defines
“competent” as including “the legal knowledge, skill thoroughness and preparation reasonably
necessary for the representation.” Further pertinent clarification is found in Comment 5 to Rule
1.1; “adequate preparation” is presented as an aspect of the duty of competence.
Rule 1.3 requires an attorney to perform his legal services with diligence and promptness.
Comment 1 to that rule notes that a lawyer should control his work load, “so that each matter can
be handled adequately.” Also, Comment 2 to that rule explains that the duty of diligence
includes timely performance of the legal work. As expressed in that comment, a “client’s
interests often can be adversely affected by the passage of time or the change of conditions.”
The language of Rules 1.1 and 1.3 includes no exceptions; there is no language creating a
different standard for prosecutors. The “Scope” section for the Rules of Professional Conduct
states that the rules “apply to all lawyers, whether practicing in the private or public sector.”
While that section does reference that Commonwealth Attorneys may have additional authority
under state and/or constitutional law, nothing in the Scope section creates a lower standard for
ethical compliance with the rules for prosecutors. The general duties of competence and
diligence apply equally to all attorneys licensed to practice in Virginia, including
Commonwealth’s Attorneys. 2
The Committee recognizes that Commonwealth’s Attorneys have a somewhat different
attorney/client relationship than that of attorneys in the private sector. The client for
2

Although this opinion addresses workloads for prosecutors, excessive caseloads for public defenders and courtappointed counsel raise the same ethical problems if each client’s case cannot be attended to with reasonable
diligence and competence.

Committee Opinion
June 30, 2004
As Revised
August 3, 2004
Commonwealth’s Attorneys is the Commonwealth of Virginia. That client must receive the
same protection under the ethics rules as any client obtaining legal services.
Any attorney serving as a Commonwealth’s Attorney, in fulfilling his duties of competence
and diligence, must be mindful of a pertinent directive from Rule 1.16. Paragraph (a)
of Rule 1.16 dictates that a lawyer not accept or continue a particular representation if it means
violating another ethical rule. As explained in Comment [1] to the rule:
A lawyer should not accept or continue representation in a matter unless it can
be performed competently, promptly, without improper conflict of interest and
to completion.
This Committee finds persuasive the analysis and conclusions drawn by the Arizona Bar
regarding a prosecutor’s obligations, in its Ethics Opinion 86-4:
Ethical Rule 1.16 makes clear that a lawyer with a maximum caseload must
decline new cases or terminate representation where the representation will
result in violation of the Rules of Professional Conduct or other law.
Consequently, where the demands of an extreme caseload make an attorney
unable to devote sufficient attention to a particular case, acceptance of that
case will cause a violation of Ethical Rules 1.1 on competent representation,
1.3 on attorney diligence and 1.16 for failing to decline or terminate
representation where the representation will violate these rules.
Thus, a lawyer who accepts more cases than he can competently prosecute will
be committing an ethical violation.
This Committee agrees and opines that a Commonwealth’s Attorney who operates with a
caseload so overly large as to preclude competent, diligent representation in each case is in
violation of the ethics rules. 3

3

In addition, Comment 1 to Rule 3.8 provides:
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided on the basis of sufficient evidence. (emphasis
added).

Rule 3.8 (a) prohibits a prosecutor from initiating or maintaining a charge once the prosecutor knows that the charge
is not supportable by probable cause. The term “knows” as used in this rule denotes actual knowledge on the part of
the prosecutor. While the cited rule may not be violated under the circumstances presented in your hypothetical, the
inability of the prosecutor, due to his or her crushing caseload, to prepare his or her case and evaluate the strength of
the Commonwealth’s case frustrates these principles.

Committee Opinion
June 30, 2004
As Revised
August 3, 2004
Your inquiry presents very specific details regarding Attorney Smith’s cases and asks whether
those details constitute a violation of Rules 1.1 and 1.3. Whether a particular matter has been
handled with competence and diligence is very fact-specific, involving many factors such as the
complexity of the matter as well as the knowledge, skill and preparation needed for the matter.
Such a context-specific determination is for a fact-finder and goes beyond the purview of this
Committee. Accordingly, the Committee declines to opine as to whether the two instances
provided violate the rules. Nonetheless, the Committee notes that if an attorney fails to take
critical steps or makes a critical mistake in a client’s case where such omission or error rises to
the level of a Rule 1.1 and/or 1.3 violation, the fact that the attorney represents the
Commonwealth and has a large caseload does not provide a safe harbor.
Your second question regards the supervision of Attorney Smith. If Attorney Smith has
violated Rule 1.1 and/or Rule 1.3, is there any ethical issue faced by the lead Commonwealth’s
Attorney who supervises him?
Rule 5.1 (a) requires that a lawyer in a managerial position make reasonable efforts to ensure
that the firm has measures in place so that lawyers in the office conform to the Rules of
Professional Conduct. Also, paragraph (b) of Rule 5.1 states that where one attorney has direct
supervision over another lawyer, the supervisor should make reasonable efforts to ensure the
other lawyer complies with the Rules of Professional Conduct. The rule continues in paragraph
(c) to hold responsible a supervising attorney for the ethical violations of an attorney he
supervises if the supervisor orders or knowingly ratifies the conduct involved. In elaborating
upon those duties, Comment [2] to the rule presents a list of procedures a supervising attorney
should have in place; one example is a procedure to “identify dates by which actions must be
taken in pending matters.”
Those provisions do place responsibility on the shoulders of a Commonwealth’s Attorney for
having in place policies and procedures to establish an office that practices within the parameters
of the Rules of Professional Conduct and that the Commonwealth’s Attorney properly supervise
the Assistant Commonwealth’s Attorneys reporting to him to assure ethical compliance.
Attorney Smith in struggling with his caseload and missing important deadlines was under the
supervision of the Commonwealth’s Attorney. That lead attorney in deciding the case load to be
borne by Attorney Smith is in a position to render impossible Attorney Smith’s ability to work
competently and diligently. Where a supervising attorney assigns a caseload so large as to
preclude any hope of the supervised attorney’s ethically representing the client (or clients), that
supervisor would be in violation of Rule 5.1.
As in question one above, whether a particular attorney’s caseload is in fact of such a
detrimental size is so context-specific as to be a determination proper only for a fact-finder and
is, therefore, outside the purview of this Committee. Nonetheless, if a Commonwealth’s
Attorney has in fact assigned such an impermissibly large caseload to an Assistant
Commonwealth’s Attorney, the facts that the client is the amorphous Commonwealth and that
the Commonwealth’s Attorney has himself a large caseload provide no safe harbor from the
requirements of Rule 5.1.

Committee Opinion
June 30, 2004
As Revised
August 3, 2004

This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.