Can a lawyer who sits on a state facility's human rights committee also represent patients of that facility in unrelated proceedings?

Plain-English summary

An attorney was a member of the local human rights committee (LHRC) at a Virginia treatment center. The LHRC reviews patient complaints and advises the facility's director on action to correct violations of patients' rights. The same attorney also represented patients of the center, then handling one patient in a commitment proceeding and another in a civil case in circuit court. Neither the center, its employees, nor the LHRC were parties in those cases, and the attorney would not sit as an LHRC member on any complaint brought by a present or former client.

The committee noted that the State Board of Mental Health and Retardation is a state regulatory board, that the board appoints a state human rights committee, which in turn appoints the local committee, and that it could only presume the LHRC must be considered a state agency regulatory board (SARB) as set forth in LE Op. 847. On those facts, the committee opined that it was not improper for the attorney to represent the two clients while serving on the LHRC, because the two cases the attorney was handling did not appear to be substantially related to those the attorney would consider as a committee member. The committee advised that a potential for conflict may exist with future clients the attorney represents.

Currency note

This opinion was issued in 1987, 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. 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 Treat this page as historical context, not current guidance.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 serve on a state facility's review committee and also represent the facility's patients?

A: Under this 1987 opinion, yes, where the representations are not substantially related to the matters the lawyer considers as a committee member, and neither the facility nor the committee is a party.

Q: What was the limiting factor the committee identified?

A: The substantial-relationship of the matters. The committee found no improper conflict because the patient cases were not substantially related to the committee's work, and it cautioned that future clients could present a potential conflict.

Background and rules framework

The opinion did not cite a specific disciplinary rule. It analyzed the question as a conflict of interest, turning on whether the lawyer's client matters were substantially related to the matters the lawyer would consider as a member of a state agency regulatory board, and relied on its prior opinion LE Op. 847 on such boards.

Citations and references

Statutes:

• Va. Code § 2.1-20.4 (State Board of Mental Health and Retardation)

Other opinions cited:

• LE Op. 847: treatment of a state agency regulatory board (SARB)

See also

• VA LEO 1038: Assistant Attorneys General Advocating and Advising the Same Board
• VA LEO 1020: Assistant Commonwealth's Attorney in Related Civil Cases

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0987.pdf

Original opinion text

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

Committee Opinion
October 29, 1987
LEGAL ETHICS OPINION 987

CONFLICT OF INTEREST – HEARING
OFFICERS.

An attorney is a member of the local human rights committee (LHRC) at a certain
Virginia treatment center. The LHRC reviews complaints by patients and advises the
director of the facility as to action which should be taken to correct violations of rights of
patients. The attorney also represents patients of the center in special education
proceedings and commitment hearings. The attorney presently represents two patients of
the center, one in a commitment proceeding and the other in a civil case in circuit court.
Neither the center, any employees of the center, nor the LHRC are parties in the cases.
The attorney will not sit as a member of the LHRC on any complaint brought by any
present or former client.
The State Board of Mental Health and Retardation is a state regulatory board (Code of
Va. § 2.1-20.4). That board appoints a state human rights committee which in turn
appoints the local human rights committee. The committee can only presume that the
LHRC must be considered a state agency regulatory board (SARB) as set forth in LE Op.
847.
It is not improper, given the above, for the attorney to represent the two clients while
serving as a member of the LHRC. From the facts provided, it does not appear that the
two cases which the attorney is presently handling are substantially related to those which
the attorney would consider as a member of the LHRC.
The committee does advise that a potential for conflict may exist with future
individuals which the attorney represents. [See also LE Op. 847]
Committee Opinion
October 29, 1987