Can a full-time state-employed lawyer represent private clients in lawsuits against the State and collect fees from the State on top of a salary?

Plain-English summary

A member of the Attorney General's staff asked whether it is unethical for a lawyer employed full-time by the State to represent private parties in actions against the State and to collect legal fees and expenses from the State in addition to his own salary. The Committee identified DR 5-105(B) and Canon 9 of the West Virginia Code of Professional Responsibility as the governing authorities.

The Committee recounted its consistent prior position that a lawyer who has a duty, by employment, office, or otherwise, to represent the State or its political subdivisions must not represent claimants against the State, and that such employment had been discouraged even absent an actual conflict when a danger of public suspicion existed (citing Advisory Opinion No. 3 (1952) on an Attorney General, Advisory Opinion No. 2 (1952) on a prosecuting attorney, LEI 77-3 (1978) on a municipal judge, and Advisory Opinion No. 7 (1953) on partners of a divorce commissioner). It noted that when a lawyer represents the State in any capacity, it is improper under DR 5-105(B) to accept employment by a person who wishes to sue the State.

The Committee found those authorities of limited use here, because the inquiry did not state that the lawyer-employee had a statutory or contractual duty to represent the State. Assuming the lawyer had no statutory, constitutional, or contractual duty to represent West Virginia, the Committee concluded there would be no per se conflict arising merely from his state employment combined with representing private clients who wish to pursue claims against the State.

Even so, the Committee added that a full-time state employee's representation of private parties against departments and agencies of the State bears the appearance of impropriety, which Canon 9 of the Code generally forbids, and that in the Committee's view such representation should be avoided.

Currency note

This opinion was issued in 1981, before West Virginia replaced its Code of Professional Responsibility (the DR and Canon provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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 Treat this page as historical context, not current guidance.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: Is there an automatic conflict when a state-employed lawyer sues the State for a private client?

A: Not necessarily. The opinion concluded that if the lawyer has no statutory, constitutional, or contractual duty to represent the State, there is no per se conflict under DR 5-105(B) from the combination of state employment and private representation against the State.

Q: So is it acceptable for the lawyer to take such cases?

A: The opinion advised against it. It found that a full-time state employee's representation of private parties against state departments and agencies bears the appearance of impropriety forbidden generally by Canon 9 and should be avoided.

Q: What would create a clear, per se conflict?

A: The opinion indicated that a lawyer who has a duty, by employment, office, or otherwise, to represent the State may not accept employment by a person who wishes to sue the State, citing DR 5-105(B) and its prior opinions on prosecutors, the Attorney General, and similar officials.

Background and rules framework

The opinion applied DR 5-105(B) of the Code of Professional Responsibility, which bars accepting employment that would involve representing differing interests, and Canon 9, which addresses avoiding the appearance of impropriety. It distinguished between a lawyer who has an actual duty to represent the State (for whom suing the State is improper) and a state-employed lawyer with no such duty (for whom there is no per se conflict but an appearance problem that counsels avoidance).

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-105(B) (a lawyer who represents the State may not accept employment by a person who wishes to sue the State)
• Canon 9 (avoiding the appearance of impropriety)

Other opinions cited:

• WVSB Advisory Opinion No. 3 (Nov. 25, 1952) [Attorney General]
• WVSB Advisory Opinion No. 2 (Nov. 25, 1952) [Prosecuting Attorney]
• WVSB Legal Ethics Inquiry 77-3 (W. Va. B.J., Spring 1978) [Municipal Judge]
• WVSB Advisory Opinion No. 7 (Jan. 30, 1953) [Partners of a Divorce Commissioner]
• Kizer, Legal Ethics and the Prosecuting Attorney, W. Va. L. Rev., Vol. 79, pp. 367-80

See also

• WVSB Ethics Op. 83-8: State-employed attorney and a Crime Victims Reparation claim
• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims
• WVSB Ethics Op. 81-10: Firm conflict in a county jail-conditions suit

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ef10bdcbbb5ae4499.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEGAL ETHICS INQUIRY 80-4

(January 16, 1981)

MAY A STATE EMPLOYEE WHO IS AN ATTORNEY SUE THE STATE FOR A PRIVATE CITIZEN AND RECOVER HIS LEGAL FEE FROM THE STATE?

A member of the Attorney General's staff has presented the following inquiry to the Committee: "Is it unethical for a lawyer employed full-time by the State to represent private parties in actions against the State and to collect legal fees and expenses from the State in addition to his own salary"?

ETHICS CODE AUTHORITIES: DR 5-105(B) and Canon 9, West Virginia Code of Professional Responsibility.

The Committee has often held that a lawyer who has a duty, by employment, office or otherwise, to represent the State or any of its political subdivisions must not represent private or public claimants against the State. Advisory Opinion No. 3 (November 25, 1952) [Attorney General]. Such employment has been discouraged even when there might not be a conflict, in fact, but a danger of public suspicion or misunderstanding existed. Advisory Opinion No. 2 (November 25, 1952) [Prosecuting Attorney]; Legal Ethics Inquiry #77-3 (W. Va. B.J.), Spring, 1978, Vol. 4, No. 1 [Municipal Judge]; Advisory Opinion No. 7 (January 30, 1953) [Partners of Divorce Commissioner]. See also Kizer, Legal Ethics and the Prosecuting Attorney, W. Va. L. Rev., Vol. 79, pp. 367-80.

When a lawyer represents the State, in any capacity, it is improper for him to accept employment by a person who wishes to sue the State. DR 5-105(B).

The nature of the present inquiry, however, renders these authorities of little use because the inquiry did not state that the lawyer/employee has a statutory or contractual duty to represent the State of West Virginia. We must assume, then, that the lawyer who is the subject of the inquiry has no statutory, constitutional or contractual duty to represent the State of West Virginia. Such being the case, there would be no per se conflict arising from his mere employment by the State and his representation of private clients wishing to pursue claims against the State.

Notwithstanding the foregoing, a full-time state employee's representation of private parties against departments and agencies of the State of West Virginia bears the appearance of impropriety, as forbidden generally by Canon 9 of the Code of Professional Responsibility, in the view of the Committee and should be avoided.