Does an attorney appointed Commissioner in Chancery have a conflict of interest under Rule 1.11 because of prior representations handled by the attorney or the attorney's law partner?

Plain-English summary

An attorney was appointed Commissioner in Chancery in a homeowners' association suit to enforce a lien for unpaid assessments. One defendant alleged the appointment was conflicted because, two years earlier, the Commissioner's law partner had represented a realtor in an unrelated ethics complaint brought by that defendant, and because the same defendant had years earlier consulted another attorney (now a co-defendant) about a possible fraud claim, who she believed had contacted the partner.

The opinion applies Rule 1.11(d)(1), which bars a lawyer serving as a public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice. The committee concludes there is no conflict. The realtor matter (Incident #1) was handled by the partner, not the Commissioner, and Rule 1.11 reaches only the public officer's own personal participation, with no imputation of a firm member's work. The fraud-consultation matter (Incident #2) was not the assessment case that is the subject of the appointment, and the Commissioner never worked on it either. Because the Commissioner never participated personally or substantially in the assessment case in private practice, no Rule 1.11 conflict exists.

The committee also notes that the current Rule 1.11, in effect since January 1, 2000, dropped the "appearance of impropriety" phrase found in predecessor DR 9-101, so the opinion does not use that standard to assess the conflict.

In practice

The opinion holds that, under Rule 1.11 as it stood at the time, a lawyer serving in a public role such as Commissioner in Chancery is disqualified only from a matter in which the lawyer personally and substantially participated while in private practice. Per the opinion, a law partner's prior work is not imputed to the public officer under Rule 1.11, and a separate matter involving the same parties is not the same "matter" absent personal participation; the superseded "appearance of impropriety" language does not control the analysis.

Common questions

Q: When does a lawyer-turned-public-officer have a Rule 1.11 conflict?

A: Per the opinion, only when the lawyer participated personally and substantially in the same matter while in private practice or nongovernmental employment.

Q: Does a law partner's prior representation disqualify the Commissioner?

A: No. The opinion states Rule 1.11's bar is personal to the public officer and does not impute work done by other members of the firm.

Q: Is the old "appearance of impropriety" test still used?

A: No. The opinion notes the current Rule 1.11, effective January 1, 2000, omits the "appearance of impropriety" phrase from former DR 9-101, so the committee does not apply it.

Background and rules framework

The opinion interprets Rule 1.11 (Model Rule 1.11), which governs conflicts for lawyers moving between private practice and public office. Rule 1.11(d)(1) bars a sitting public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice. The committee applies the rule's "personally and substantially" requirement and its definition of "matter," and notes that the rule no longer includes the "appearance of impropriety" standard carried by predecessor DR 9-101.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Virginia Rule 1.11(d)(1) (conflicts for current government officers and employees; personal and substantial participation)
• Former DR 9-101 (predecessor "appearance of impropriety" standard, no longer in force)

See also

• VA LEO 1841: Council Member Challenging an Ordinance
• VA LEO 1875: Furloughed Government Lawyer Conflicts
• ABA Formal Op. 509: Confidential Government Information and Disqualification

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1824.pdf

Original opinion text

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

Committee Opinion
January 10, 2006
LEGAL ETHICS OPINION 1824

CONFLICT OF INTEREST – ATTORNEY
TO SERVE AS COMMISSIONER IN
CHANCERY IN LIGHT OF PRIOR
REPRESENTATIONS.

You have presented a hypothetical in which an attorney has been appointed to serve as
Commissioner in Chancery in a suit brought by a homeowner’s association to enforce its
lien for unpaid assessments. The lot owner (“Defendant A”) and several creditors are
defendants. The lot owner’s daughter, (“Defendant B”), who is one of the defendants by
virtue of being a beneficiary of a deed of trust, has alleged a conflict in the
Commissioner’s appointment based upon the following two incidents:
Incident #1: Two years prior to the Commissioner’s appointment, the
Commissioner’s law partner represented a realtor in connection with a
real estate ethics complaint filed by Defendant B. The realtor worked
for the realty company associated with the development where
Defendant’s A’s lot is located. A letter of reprimand was issued against
the realtor for failing to provide Defendant B with a copy of the ratified
contract of purchase and commission reduction agreement upon signing
or initialing. All other allegations of wrongdoing by the realtor were
dismissed. The representation was concluded two to three weeks prior
to the Commissioner’s association with the law partner and the
formation of their law firm. The Commissioner was unaware of the
representation prior to Defendant B’s allegations of a conflict.
Incident #2: Several years ago (the exact date is unknown), Defendant
B consulted with one of the other defendants, an attorney then in
private practice, regarding a possible fraud claim against Defendant A.
The alleged basis of the fraud claim is unknown. Defendant B believes
that the attorney with whom she consulted, in turn, contacted the
Commissioner’s law partner about her case. The law partner has no
recollection of the matter.
With regard to this hypothetical, you have asked the following question:
Is it a conflict of interest for this attorney to serve as Commissioner in Chancery in this
case or would it be impermissible as involving the appearance of impropriety?
The governing provision for this question is Rule 1.11 1, which in pertinent part,
addresses attorneys serving in public roles and their potential conflicts from private
practice. Specifically, Rule 1.11(d)(1) states as follows:

1

Note that under the current Rules of Professional Conduct, Rule 1.11 is the governing provision for
potential conflicts of interest for attorneys in the public sector. That provision, in effect since January 1,
2000, does not contain the phrase “appearance of impropriety” which had been found in the title of the
predecessor to Rule 1.11, DR 9-101. As that phrase does not appear in the current rules, this opinion does

Committee Opinion
January 10, 2006

Except as law may otherwise expressly permit, a lawyer serving as a
public officer or employee shall not: (1) participate in a matter in which
the lawyer participated personally and substantially while in private
practice or nongovernmental employment, unless under applicable law
no one is, or by lawful delegation may be, authorized to act in the
lawyer’s stead in the matter.
An application of this provision to this attorney serving as Commissioner in Chancery
means that the attorney could not work as Commissioner on the unpaid assessments
matter if he participated “personally and substantially” in that assessment case in his
private practice.
The hypothetical presents two possible sources of conflict under Rule 1.11(b). First is
Incident #1, which involves work done by a partner of the Commissioner on behalf of
one of the defendants in the assessment case. The partner assisted that defendant in
bringing a complaint against a realtor, who was associated with the development where
the lot in the assessment case is located. Rule 1.11(b) only creates a conflict where the
attorney in the public role himself had worked on the matter in question; hence, the
descriptor “personally.” This is not a provision imputing work done by other members of
the government officer’s firm to that officer; the conflict is personal to him. As this
Commissioner did not at any time work on this assessment collections matter either
personally or substantially, Incident #1 does not create a conflict for his service as
Commissioner.
Similarly, Incident #2 is also not the source of a conflict of interest here. That incident
is the not the subject matter of the Commissioner’s service: the assessments case. Rather,
the second incident involved fraud charges brought by one person against another, both
of whom are now defendants in the assessment case. Even if the fraud case and the
assessments case are somehow so inextricably linked as to count as the same “matter”,
the Commissioner never worked on the fraud case. 2 Again, the Commissioner never
worked personally or substantially on the assessment case in private practice;
accordingly, he does not have a conflict of interest under Rule 1.11.
not use that language to determine whether or not there is a conflict of interest in this Commissioner’s
service.
2
Note that Rule 1.11 contains the following definition of “matter”:
(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest
or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
While the Committee assumes that the assessment enforcement case is not the same matter as the fraud
case or the realtor complaint, the hypothetical lacks sufficient detail to make an unqualified, definitive
determination of that point.

Committee Opinion
January 10, 2006

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