Can a lawyer become an assistant county attorney when the lawyer's spouse litigates significant cases against the county?

Plain-English summary

The committee considered a lawyer who wished to accept employment as an assistant county attorney while the lawyer's spouse, either individually or through the spouse's law firm, conducts significant litigation against the county. The committee concluded that the employment was not improper, so long as the assistant county attorney has no contact with any litigation involving the spouse. It cited DR 5-101 and LE Op. 185.

Currency note

This opinion was issued in 1984, 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 records that current Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent. 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 Treat this page as historical context, not current guidance.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 work for the county when a spouse sues the county?

A: Under this 1984 opinion, yes; the committee found the assistant county attorney role not improper so long as the lawyer had no contact with any litigation involving the spouse.

Q: What was the screening condition?

A: The assistant county attorney had to have no contact with any litigation involving the spouse, individually or through the spouse's firm.

Q: How would current rules treat related lawyers on opposite sides?

A: The committee note states that current Rule 1.8(i) allows related lawyers to be directly adverse to one another if the clients consent.

Background and rules framework

The opinion applies the former Code's DR 5-101 personal-interest conflict standard to a public lawyer whose spouse litigates against the same government employer, permitting the employment subject to a no-contact condition. The committee note maps the related-lawyer question onto current Virginia Rule 1.8(i), corresponding to ABA Model Rule 1.8 and the conflict principles of Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• DR 5-101 (personal-interest conflict) (former Code)
• Virginia Rule 1.8(i) (related lawyers; cited in the committee note)
• ABA Model Rule 1.7 / Model Rule 1.8 (conflicts of interest; related lawyers)

Other opinions cited:

• Virginia LE Op. 185

See also

• VA LEO 619: Lawyers in a Marriage on Opposite Sides of a Case
• VA LEO 665: A Part-Time Prosecutor's Spouse and Law Partner
• VA LEO 780: Defense Lawyer With a Prosecutor Spouse

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0556.pdf

Original opinion text

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

LEGAL ETHICS OPINION 556

APPEARANCE OF IMPROPRIETY – ATTORNEY’S SPOUSE EMPLOYED AS ASSISTANT COUNTY ATTORNEY.

It is not improper for an attorney to accept employment as an assistant county attorney when that attorney's spouse, either individually or through his law firm, conducts significant litigation against the county, so long as the assistant county attorney has no contact with any litigation involving the spouse. [ DR:5-101, LE Op. 185.]

Committee Opinion
April 10, 1984

Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.