Can a prosecuting attorney or assistant prosecuting attorney represent a private client with a claim against a state agency before the West Virginia Court of Claims?

Plain-English summary

A member of the State Bar asked whether a prosecuting or assistant prosecuting attorney could represent the widow of a state employee in presenting her claim against a state agency before the West Virginia Court of Claims. The Committee noted these questions recur because many prosecuting attorneys are not allowed by law to serve a large enough area, or are not sufficiently reimbursed, to devote full time to their prosecutorial duties, and so engage in private practice.

The Committee tied the answer to the prosecutor's statutory duties. By statute, all prosecutors are subject to being required by the Attorney General to perform the duties of the Attorney General within their counties, and may be required to assist the Attorney General in any county in performing those duties (citing W. Va. Code § 5-3-2, State ex rel. Matko v. Ziegler, and W. Va. Code § 7-4-1). In the hypothetical, the individual's claim is against a state agency; while it is primarily the Attorney General's duty to represent state agencies, the potential duty of representing a state agency also falls on the prosecuting attorney.

The Committee relied on its prior opinions. In LEI 77-9 it decided that prosecutors may represent private clients in Workers' Compensation Fund claims because those cases involve the employee and employer and do not involve the state, but it would be improper for the prosecutor to sue the Fund on behalf of a private client. In LEI 78-1 it advised that an assistant prosecutor may not bring an action for private clients against the Board of Regents, reaffirmed that the public, as represented by its officials, cannot consent to a conflict of interest of a lawyer who represents the public, and treated representation against the state before the Court of Claims by a part-time special assistant attorney general as an improper loyalty conflict.

Applying Canon 5 (EC 5-14, EC 5-15, and DR 5-105(A)), the Committee reasoned that the state and its agencies are the continuous and primary client of the prosecuting attorney, so any employment by a private client with claims against the state or its agencies carries substantial risk of creating a conflict of loyalty. Because statutory authority establishes the prosecutor's duty to represent the state agency involved in the private client's claim, avoidance of loyalty conflicts requires the prosecutor to refuse or withdraw from the private employment. Invoking Canon 9's warning against even the appearance of impropriety, the Committee added that allowing the state's lawyer to present a claim against a state agency for payment from the public treasury raises an unacceptable appearance of improper activity. While it recognized that discharging prosecutorial duties may be practically and financially difficult, it said it could decide the question only by ethics authorities, and on that basis advised that it is not ethically proper for a prosecuting or assistant prosecuting attorney to represent a claimant before the West Virginia Court of Claims.

Currency note

This opinion was issued in 1983, before West Virginia replaced its Code of Professional Responsibility (the DR, EC, 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: Could a part-time prosecutor take a private client's claim against a state agency before the Court of Claims?

A: No. The opinion concluded it is not ethically proper for a prosecuting or assistant prosecuting attorney to represent a claimant before the West Virginia Court of Claims, because the state and its agencies are the prosecutor's continuous client.

Q: Why couldn't the conflict be cured by client consent?

A: The opinion reaffirmed that the public, as represented by its officials, cannot consent to a conflict of interest of a lawyer who represents the public, so the private client's consent could not authorize the representation.

Q: How is this different from a prosecutor handling a Workers' Compensation claim?

A: The opinion distinguished LEI 77-9, where Workers' Compensation Fund claims involve the employer and employee and do not involve the state; a Court of Claims matter is a claim against a state agency for payment from the public treasury, which the prosecutor has a potential statutory duty to defend.

Background and rules framework

The opinion applied Canon 5 of the Code of Professional Responsibility, including EC 5-14 (representation of differing interests dilutes loyalty), EC 5-15 (resolve doubt by declining employment presenting actual or potential conflict), and DR 5-105(A) (declining employment likely to involve representing differing interests), together with Canon 9 (avoiding the appearance of impropriety). It grounded the conflict in the prosecutor's statutory duties to the state and its agencies under the West Virginia Code.

Citations and references

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

• DR 5-105(A) (declining proffered employment that would likely involve representing differing interests)
• EC 5-14, EC 5-15 (loyalty and resolving doubt by declining conflicted employment)
• Canon 9 (avoiding even the appearance of impropriety)

Statutes:

• W. Va. Code Ann. § 5-3-2 (1979 Replacement Volume) (prosecutors required to perform Attorney General duties in their counties)
• W. Va. Code Ann. § 7-4-1 (1976 Replacement Volume) (duties of prosecuting attorneys)

Cases:

• State ex rel. Matko v. Ziegler, 154 W. Va. 872, 179 S.E.2d 735 (1971), prosecutor's duty to assist the Attorney General

Other opinions cited:

• WVSB LEI 77-9 (Winter 1978): prosecutors may represent private clients in Workers' Compensation Fund claims but may not sue the Fund for a private client
• WVSB LEI 78-1 (Spring 1978): assistant prosecutor may not bring an action for private clients against the Board of Regents; public cannot consent to such a conflict

See also

• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 86-3: Prosecutor representing a client previously investigated
• WVSB Ethics Op. 85-2: Prosecutor's office is not a "law firm" for imputed disqualification

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e3c9fe0350845e813.pdf

Original opinion text

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

L.E.I. 83-4

(June 3, 1983)

PROPRIETY OF PROSECUTING ATTORNEY'S REPRESENTATION OF CLAIMANT IN A MATTER BEFORE THE COURT OF CLAIMS

A member of The West Virginia State Bar has asked the Committee on Legal Ethics for its opinion regarding representation, by a prosecuting attorney or assistant prosecuting attorney, of the widow of a state employee in her presentation of a claim against a state agency before the Court of Claims of West Virginia.

The Committee has received frequent requests from prosecuting attorneys concerning the propriety of various activities in which they might become involved. These problems continue to arise because many prosecuting attorneys are not allowed by law to serve a sufficiently large area or are not sufficiently reimbursed to allow them to devote their full time to their prosecutorial duties.

By statute, all prosecutors are subject to being required by the Attorney General to perform the duties of the Attorney General within their respective counties. W. Va. Code Ann. § 5-3-2 (1979 Replacement Volume); State ex rel. Matko v. Ziegler, 154 W. Va. 872, 179 S.E.2d 735 (1971). The prosecuting attorney may also be required to perform, or to assist the Attorney General in performing, any duties required of the Attorney General in any county other than that in which the prosecutor is elected, under certain specified conditions. W. Va. Code Ann. § 7-4-1 (1976 Replacement Volume).

In the hypothetical case presented to this Committee, the claim of the individual client is against a state agency. While it is primarily the duty of the Attorney General to represent state agencies, it is also clear that the potential duty of representing a state agency falls upon the prosecuting attorney.

In L.E.I. 77-9 (Winter, 1978) this Committee decided that prosecuting attorneys may represent private clients in claims involving the Workers' Compensation Fund since such cases are in fact cases involving the employee and employer and do not involve the state. It would be improper for the prosecutor to sue the Fund on behalf of a private client. In L.E.I. 78-1 (Spring, 1978) this Committee advised that it is improper for an assistant prosecuting attorney to bring an action for private clients against the Board of Regents. That opinion also reaffirmed that the public, as represented by its officials, cannot give consent to a conflict of interest of a lawyer who represents the public. Opinion 78-1 also discussed, is illustrative of an improper loyalty conflict practice before the Court of Claims by a part-time special assistant attorney general.

The basic ethics code authority for opinions of this Committee on questions relating to the loyalties and duties of prosecuting attorneys is EC 5-14, EC 5-15 and DR 5-105(A) of the Code of Professional Responsibility of The West Virginia State Bar, W. Va. Code Ann., Vol. 1A, pp. 281-333 (1982 Replacement Volume). EC 5-14 indicates that representation of differing interests often dilutes the lawyer's loyalty to the client. EC 5-15 indicates that a lawyer should resolve any doubt as to a loyalty conflict by refusing the employment which presents actual or potential conflict. DR 5-105(A) of the Ethics Code requires rejection of proffered employment if such is likely to affect adversely a lawyer's independent professional judgment on behalf of a client or if it is likely to involve the lawyer in representing differing interests. As noted previously, the state and its agencies are the continuous and primary client of the prosecuting attorney; any employment of a prosecuting attorney by a private client with claims against the state or its agencies therefore carries substantial risk of creating a conflict of loyalty. When, as here, there is statutory authority establishing the prosecuting attorney's duty to represent the state agency involved in the private client's claim, avoidance of loyalty conflicts requires that the prosecuting attorney refuse the employment proffered by the private client or withdraw from such private employment when the conflict first becomes known to the lawyer.

Canon 9 of the Ethics Code also warns against "even the appearance of impropriety." It is the Committee's view that allowing the prosecuting attorney, the state's lawyer, to present a claim, against a state agency, for payment from the public treasury raises an unacceptable appearance of improper activity. For this additional reason, the prosecuting attorney should not accept private employment in the circumstances outlined in this ethics inquiry.

While the Committee is aware that discharge of the duties of prosecuting attorney may often be practically and financially difficult, it may decide the question presented here only by use of ethics authorities. Based on its analysis of such authorities, the Committee advises that it is not ethically proper for a prosecuting attorney or assistant prosecuting attorney to represent a claimant in a matter before the Court of Claims of the State of West Virginia.