May a law firm defend cases that arose while one of its lawyers was an Assistant Commonwealth's Attorney, if that lawyer had no involvement in them as a prosecutor?
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This page answers the general question as of 1978. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
The committee addressed whether the present firm of a former Assistant Commonwealth's Attorney could defend cases that arose during the lawyer's time in the prosecutor's office. It concluded that doing so is not improper, so long as the lawyer had no involvement in the case while serving as an Assistant Commonwealth's Attorney, citing DR 5-105(D) and DR 9-101(B).
Currency note
This opinion was issued in 1978, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.11 now allows a law firm to avoid disqualification in certain circumstances if it screens the former government attorney. 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 Treat this page as historical context, not current guidance.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 former prosecutor's firm take these defense cases?
A: Under this 1978 opinion, yes, provided the lawyer had no involvement in the case while serving as an Assistant Commonwealth's Attorney.
Q: What was the key factor?
A: The lawyer's personal non-involvement in the matter while a prosecutor. The committee note adds that current Rule 1.11 allows the firm to avoid disqualification through screening of the former government attorney.
Background and rules framework
The opinion applied the former Code's DR 5-105(D) (imputed disqualification) and DR 9-101(B) (avoiding the appearance of impropriety for former public employees) to a former prosecutor's firm. The committee note maps the question onto current Virginia Rule 1.11, corresponding to ABA Model Rule 1.11 on successive government and private employment.
Citations and references
Rules of Professional Conduct:
- DR 5-105(D) (imputed disqualification) (former Code)
- DR 9-101(B) (former Code)
- Virginia Rule 1.11 (former government attorney; screening) (cited in the committee note)
- ABA Model Rule 1.11 (special conflicts for former and current government officers)
See also
- VA LEO 1012: Former Commonwealth's Attorney's Partner in a Civil Suit
- VA LEO 1058: Commonwealth's Attorney Conflict From a Former Firm Colleague
- VA LEO 398: A Prosecutor's Permissible Private Practice
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0303.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
LEGAL ETHICS OPINION 303
CONFLICT OF INTEREST.
It is not improper for the present law firm of a former Assistant Commonwealth's Attorney to defend clients' cases that arose during the time that the attorney was associated with the Commonwealth's Attorney's Office, so long as the attorney had no involvement in the case while he was an Assistant Commonwealth's Attorney. [See II: DR:5-105(D) and DR: 9-101(B).]
Committee Opinion
November 2, 1978
Legal Ethics Committee Notes. – Rule 1.11 allows a law firm to avoid disqualification in certain circumstances if it screens the former government attorney.
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