Can the spouse and law partner of a part-time prosecutor handle a real estate matter that needs that prosecutor's official approval or advice?
Apply this to your situation
This page answers the general question as of 1985. 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 a lawyer who is both the spouse and the law partner of a part-time commonwealth's, city, or county attorney, and who wishes to represent a client in a real estate transaction that requires a locality official to approve a subdivision plat. The committee concluded that it would be improper to take the matter, or to request a change in the conditions of plat approval, if securing that approval or change would require the part-time prosecutor to render official advice.
Where the part-time prosecutor is not called on to render advice, the committee concluded that the spouse and law partner may proceed with the representation, provided there is full disclosure to the client about the relationship and provided no interest would impair the spouse and law partner's independent professional judgment.
Currency note
This opinion was issued in 1985, 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 Treat this page as historical context, not current guidance.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: Could the spouse of a part-time prosecutor handle a real estate matter needing the locality's approval?
A: Under this 1985 opinion, not where securing the plat approval would require the part-time prosecutor to render official advice; on those facts the committee found the representation improper.
Q: What if the part-time prosecutor is not asked to give official advice?
A: The committee concluded the spouse and law partner could proceed, but only with full disclosure to the client about the relationship and only if no interest would impair the lawyer's independent professional judgment.
Q: Did the part-time prosecutor's role change the analysis?
A: Yes. The conflict turned on whether the prosecutor would have to act officially on the matter the spouse and partner were handling privately; the trigger was the official-advice function, not the marriage or partnership alone.
Background and rules framework
The opinion analyzed the conflict that arises when one spouse holds a part-time public office whose duties can reach a private matter the other spouse and law partner is handling. The committee's test turned on whether the part-time prosecutor would be required to render official advice and on the independent-professional-judgment standard of Virginia's former Code. 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:
- 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)
See also
- VA LEO 780: Defense Lawyer With a Prosecutor Spouse
- VA LEO 814: A Lawyer's Personal Interest in the Litigation
- VA LEO 686: Substitute Judge's Firm in a Related Civil Suit
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0665.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
LEGAL ETHICS OPINION 665
CONFLICT OF INTEREST – PART-TIME COMMONWEALTH’S, CITY OR COUNTY ATTORNEY-PRIVATE PRACTICE-FAMILIAL RELATIONSHIPS-SPOUSE.
It would be improper for the spouse and law partner of a part-time commonwealth's, city or county attorney to accept employment in a real estate transaction for which the approval of a subdivision plat by an official of the locality is required if in the course of securing such approval it was necessary for the part-time commonwealth's, city or county attorney to render advice. Similarly, it would be improper for said attorney to request a change in the conditions of plat approval if such change would require advice from the part-time commonwealth's, city or county attorney. In situations where a part-time commonwealth's, city or county attorney is not called upon to render advice, it would be proper for the spouse and law partner of the part-time commonwealth's, city or county attorney to proceed with representation provided there is full disclosure to the client concerning the relationship with the part-time commonwealth's, city or county attorney and, further, provided that there is no interest which would impair the independent professional judgment of the spouse and law partner of the part-time commonwealth's, city or county attorney.
Committee Opinion
March 15, 1985
Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.
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