Can a full-time state-employed attorney who also acts as a special assistant attorney general represent a private citizen's Crime Victims Reparation Act claim before the Court of Claims?

Plain-English summary

The Committee was asked whether a special assistant attorney general representing the Department of Human Services, who is also a full-time civil-service employee of a state agency, could represent a client before the Court of Claims in an action to recover reparations under the West Virginia Crime Victims Reparation Act of 1981. The Committee treated the question as one of first impression, distinguishing its prior opinions on a prosecutor presenting Workers' Compensation claims (LEI 77-9), a prosecutor suing the Board of Regents (LEI 78-1), and a prosecutor representing a claimant before the Court of Claims (LEI 83-4).

The Committee described the statutory scheme: the Reparation Fund is a special revenue fund financed by an additional cost levied on persons convicted of a felony or misdemeanor; the Clerk of the Court of Claims investigates claims; awards are approved by the Court of Claims or a Claims Commissioner; and the Governor includes recommended awards in the budget request for legislative approval (citing W. Va. Code Chapter 14, Article 2A). It restated the general rule that a state-employed attorney should not engage in a suit against the state or its agencies, because DR 5-105(A) requires rejecting employment likely to affect independent professional judgment and EC 5-15 directs refusal when loyalty to a prior client might be diluted, and it noted that under LEI 78-1 the public at large cannot consent to such a conflict.

The Committee found this situation different. It reasoned that, like the Workers' Compensation Fund, the Reparation Fund is merely administered by the state and is composed of monies collected from persons already convicted of crimes, so a claim under the Act, even one requiring an adversarial hearing held before a single judge of the Court of Claims or a Commissioner, is not a claim against the state. It added that the Attorney General no longer represented the state's interest in contested Fund cases; instead, the Clerk's "reparations investigator" presents the adverse position. Critically, unlike a prosecuting attorney, who has a statutory duty to assist the Attorney General and so stands in constant danger of being forced to represent the state, this state-employed attorney has no duty to serve as a special assistant attorney general and could simply refuse any appointment that would create a conflict.

The Committee concluded that presentation of a private citizen's reparation claim, including representation in an adversarial hearing, by an attorney employed by a state agency who also occasionally acts as a special assistant attorney general presents no conflict of loyalty under DR 5-105. It expressly reserved two questions it was not asked to decide: a suit against the Court of Claims itself for improper discharge of its duty, and a claim presented on behalf of a state employee, either of which might require a different result.

Currency note

This opinion was issued in 1983, before West Virginia replaced its Code of Professional Responsibility (the DR and EC provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The statutes cited here have also been amended over time. 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 state-employed lawyer represent a private claimant before the Court of Claims under the Crime Victims Reparation Act?

A: Yes. The opinion concluded that such representation, including in an adversarial hearing, presents no conflict of loyalty under DR 5-105, because the Reparation Fund is only administered by the state and the claim is not a claim against the state.

Q: How did the Committee distinguish this from the prosecutor cases?

A: The opinion explained that a prosecuting attorney has a statutory duty to assist the Attorney General and so risks being forced to represent the state, while the inquiring state-employed attorney had no such duty and could refuse any special-assistant appointment that would create a conflict.

Q: Why is a reparation claim not treated as a suit against the state?

A: The opinion reasoned that, like the Workers' Compensation Fund, the Reparation Fund is merely administered by the state and is made up of money collected from convicted offenders, and that the adverse position at any hearing is presented by the Clerk's reparations investigator rather than by the Attorney General.

Q: What did the Committee decline to decide?

A: The opinion reserved whether the result would differ if the suit were against the Court of Claims itself for improperly discharging its duty, or if the claim were presented on behalf of a state employee, noting those issues were not before it.

Background and rules framework

The opinion applied the conflict-of-interest provisions of the Code of Professional Responsibility then in force, principally DR 5-105(A) (rejecting employment likely to adversely affect independent professional judgment or to involve differing interests) and EC 5-15 (resolving doubt by refusing employment), and read them against the statutory structure of the Crime Victims Reparation Act of 1981 (W. Va. Code Chapter 14, Article 2A) and the nature of the Reparation Fund.

Citations and references

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

• DR 5-105(A) (reject employment likely to adversely affect independent professional judgment or to involve representing differing interests)
• DR 5-105 (conflicts in multiple or adverse representation)
• EC 5-15 (resolve doubt about a loyalty conflict by refusing the employment)

Statutes:

• W. Va. Code Chapter 14, Article 2A (West Virginia Crime Victims Reparation Act of 1981), including §§ 14-2A-2, 14-2A-4, 14-2A-5, 14-2A-9, 14-2A-12, 14-2A-13, 14-2A-14, 14-2A-15, 14-2A-20, and 14-2A-22

Other opinions cited:

• WVSB LEI 77-9 (Winter 1978): prosecutor may present Workers' Compensation claims for a private person but may not sue the Fund
• WVSB LEI 78-1 (Spring 1978): prosecutor may not sue the Board of Regents; public cannot consent to a state attorney's conflict
• WVSB LEI 83-4 (June 3, 1983): prosecuting attorney may not represent a private claimant against a state agency before the Court of Claims

See also

• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims
• WVSB Ethics Op. 83-11: Lawyer-legislator representing a client before the Court of Claims
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e3c9fe03f1f45e812.pdf

Original opinion text

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

L.E.I. 83-8

(October 21, 1983)

REPRESENTATION OF A PRIVATE CITIZEN'S CRIME VICTIMS REPARATION ACT CLAIM BY AN ATTORNEY EMPLOYED BY THE STATE

The Committee has been requested to render an ethics advisory opinion on the following question:

May a special assistant attorney general representing the Department of Human Services who is also a full-time civil service employee of a state agency represent a client before the Court of Claims in an action to recover reparations under the West Virginia Crime Victims Reparation Act of 1981?

While the Committee has issued opinions regarding a prosecutor's representing claimants before the Commissioner of Workers' Compensation (L.E.I. 77-9, Winter, 1978), a prosecutor's bringing private suit against the Board of Regents (L.E.I. 78-1, Spring, 1978) and, most recently, a prosecutor's representing a claimant before the Court of Claims (L.E.I. 83-4, June 3, 1983), this question is a matter of first impression.

The West Virginia Crime Victims Reparation Act of 1981 has as its stated purpose "defining and presenting, for legislative consideration, the nature and extent of the moral obligation of this state and its ability to afford reparations through its law abiding citizens who suffer from the effect of violent criminal conduct." W. Va. Code § 14-2A-2. A special revenue fund was established, funded from an additional cost levied against any person found guilty of either a felony or a misdemeanor (except for certain traffic expenses). W. Va. Code § 14-2A-4. The duty of investigating claims was given to the Clerk of the Court of Claims. W. Va. Code §§ 14-2A-9 and -12. Findings of fact and recommendations are made by an investigator employed by the Clerk and then awards are approved by the Court of Claims or a Claims Commissioner appointed by the Court. W. Va. Code §§ 14-2A-5, -13, -14 and -15. Request for hearings may be made following an additional determination. W. Va. Code § 14-2A-15. After a final decision is rendered, the Governor includes in his budget request a list of awards recommended by the Court of Claims for approval by the Legislature. W. Va. Code § 14-2A-20. Subrogation is allowed to the state upon payment of the award if the award is not reduced by an appropriate amount in cases wherein the claimant may be eligible for payment from "a collateral source." W. Va. Code § 14-2A-22.

It is clear that an attorney who is a state employee should not engage in a suit against the state or any of its agencies. DR 5-105(A) requires an attorney to reject employment which is likely to affect his independent professional judgment. Any question of whether representation may dilute his loyalty to his previous client should result in refusal of new employment. EC 5-15. In L.E.I. 78-1 (Spring, 1978) the Committee reaffirmed that the public at large cannot give consent to any conflict of interest experienced by an attorney who represents a state interest (in that instance, a prosecuting attorney who sued the Board of Regents). Only where a suit is not instituted against the state per se may an attorney working for the state represent a client before a state agency: a prosecuting attorney may present Workers' Compensation claims on behalf of a person not employed by a state agency, but he may not bring suit against the Workers' Compensation Fund itself. L.E.I. 77-9 (Winter, 1978). In L.E.I. 83-4 (Spring, 1983) the Committee stated that a prosecuting attorney should not represent a private claimant in a claim against a state agency before the Court of Claims.

In this instance, while most claims for payment from the Crime Victims Reparation Fund can be processed administratively, guilt of the offender having previously been determined, provision is made for an adversarial hearing. W. Va. Code § 14-2A-15. This hearing is to be held before a single judge of the Court of Claims or before a Commissioner appointed by the Court. W. Va. Code § 14-2A-15. Even this hearing, however, is for the sole purpose of ascertaining the correct amount to be paid from the Fund.

Unlike most hearings before the Court of Claims in which the state is, in fact, a party in interest, a claim brought to the Court under the West Virginia Crime Victims Reparation Act, even if it requires an adversarial hearing, is not a claim against the state. The fund here, like the Workers' Compensation Fund, is merely administered by the state and is composed of monies collected from persons already convicted of crimes against the state. W. Va. Code § 14-2A-4. In addition, we note that the Attorney General, who formerly represented the state's interest in contested cases regarding the Fund, is no longer involved in this process. The "reparations investigator" of the office of the Clerk of the Court of Claims makes recommendations to the Court of Claims and presents the adverse position in any subsequent hearing. W. Va. Code § 14-2A-15. Moreover, unlike a prosecuting attorney, who has a statutory duty to assist the Attorney General whenever called upon (and who therefore stands in constant danger of being forced to represent the state's interests before the Court of Claims), this state-employed attorney would never have a duty to represent the state as a Special Assistant Attorney General. When acceptance of appointment as a Special Assistant Attorney General may create a conflict, he could simply refuse the appointment.

We conclude, therefore, that the presentation of a private citizen's claims for reparation, including representation in an adversarial hearing, by an attorney employed by a state agency who also acts from time to time as a Special Assistant Attorney General, presents no conflict of loyalty as contemplated by DR 5-105.

We note that a different question is presented if the suit is contemplated against the Court of Claims itself based on the improper discharge of the Court's duty; similarly, the presentation of a claim on behalf of an employee of the state may require a different result. Since these issues were not presented, we do not decide them at this time.