Can a West Virginia county prosecuting attorney investigate or prosecute county public officials whose offices the prosecutor represents?

Plain-English summary

West Virginia county prosecutors who are called upon to investigate or prosecute county officials who hold offices the prosecutor represents expressed concern about potential conflicts of interest. The Committee looked to West Virginia Code Section 7-4-1, which defines the duties of prosecuting attorneys, providing that it is the duty of the prosecuting attorney to attend to the civil suits in the county in which the State or any department, commission, or board of the county is interested, and to advise, attend to, bring, prosecute, or defend all matters, actions, suits, and proceedings in which the county or any board of education is interested.

The Committee took the position that because West Virginia county prosecutors are charged, under Section 7-4-1, with representing the offices of various county officials (not the elected officials in their personal capacity), it is proper to proceed with prosecution of such officials, as a technical matter, when wrongdoing on the part of such elected officials comes to the prosecutor's attention. The Committee recognized, however, that prosecuting attorneys sometimes develop a relationship with the persons who hold an elected office that may make it impossible to investigate or prosecute that official in an unbiased manner. It quoted Rule 1.7(a)(1), under which a lawyer may not represent a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship and each client consents. The Committee read this as a subjective determination individual prosecutors must make: a prosecutor should determine that he or she could not, in an unbiased manner, prosecute a county official whose office the prosecutor represents, and request that the court appoint a special prosecutor to handle the matter. The Committee cited authority from around the country supporting its position, including State of Arizona v. Brooks, Ward v. Superior Court for the City of Los Angeles, and United States v. Troutman.

The Committee also concluded that if the prosecuting attorney has obtained information through representation of a particular county official's office relating to an investigation or prosecution of that official, the prosecutor should seek recusal, citing People v. Johnson and stating that Rule 1.6 requires such recusal. Its conclusion was that it is not a conflict of interest per se for West Virginia county prosecuting attorneys to investigate or prosecute county officials, because the prosecutor represents only the office, not the individual occupying it; but where the prosecutor's earlier representation of that office provided information the prosecutor would be called upon to use against the official, or where the prosecutor developed a relationship making unbiased prosecution impossible, the prosecutor must or should seek recusal.

Currency note

This opinion was issued in 1990, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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 it automatically a conflict for a county prosecutor to prosecute a county official?

A: No. The opinion concluded it is not a conflict per se, because under W. Va. Code 7-4-1 the prosecutor represents the office, not the individual occupying it.

Q: When must the prosecutor step aside?

A: The opinion concluded the prosecutor must seek recusal if earlier representation of the official's office provided information the prosecutor would use against the official, and should seek recusal if a relationship with the official would make unbiased prosecution impossible.

Q: Who decides whether the prosecutor can act without bias?

A: The opinion described it as a subjective determination the individual prosecutor must make, after which the prosecutor should request that the court appoint a special prosecutor.

Background and rules framework

The opinion interpreted West Virginia's Rules of Professional Conduct as they stood in 1990, applying Rule 1.7(a)(1) (concurrent conflicts of interest) and Rule 1.6 (confidentiality of information) to county prosecutors acting under the statutory duties in W. Va. Code 7-4-1. It treated the office, rather than the official, as the prosecutor's client and identified prior-representation information and disqualifying relationships as the triggers for recusal and appointment of a special prosecutor.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / WV Rule 1.7(a) (concurrent conflicts of interest; representation directly adverse to another client)
• Model Rule 1.6 / WV Rule 1.6 (confidentiality of information)

Statutes:

• W. Va. Code 7-4-1 (duties of prosecuting attorneys; representation of county offices)

Cases:

• State of Arizona v. Brooks, 126 Ariz. 395, 616 P.2d 70 (1980), prosecution of public officials
• Ward v. Superior Court for the City of Los Angeles, 70 Cal.App.3d 23, 128 Cal.Rptr. 532 (1977), recusal of prosecutor
• United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987), prosecution of officials
• People v. Johnson, 105 Cal.App.3d 887, 164 Cal.Rptr. 746, 750 (1980), recusal where prosecutor obtained information through prior representation

See also

• WV Ethics Op. 92-01: Prosecutor Office DQ Imputation
• WV Ethics Op. 93-03: Judge as Assistant Prosecutor
• OH BPC Op. 2009-003: Prosecutor Multiple Clients

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f665589fa5ace4b.pdf

Original opinion text

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

LEI 90-01, Propriety of West Virginia Prosecuting Attorneys
Prosecuting County Public Officials

West Virginia County Prosecutors who are called upon to investigate and/or prosecute county officials who hold offices where the prosecutor has the statutory duty to represent have expressed concern about potential conflicts of interest in such prosecutions.

West Virginia Code Section 7-4-1 defines the duties of prosecuting attorneys. That Code Section states, in relevant part, as follows:

It shall be the duty of the Prosecuting Attorney to attend to civil suits in such county in which the State or any department, commission, or board thereof, is interested, and to advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which such county or any county board of education is interested.

It is the position of the Committee on Legal Ethics that West Virginia county prosecutors are charged, under West Virginia Code 7-4-1, with representing the offices of various county officials; not the elected county officials in their personal capacity. Therefore, as a technical matter, it is proper to proceed with the prosecution of such officials when wrongdoing on the part of such elected officials come to the attention of the county prosecutor.

However, it is also recognized by the Committee that prosecuting attorneys sometimes develop a relationship with the persons who hold an elected office with which they are charged with representing. In such cases it may be impossible for the prosecutor to investigate or prosecute that particular official in an unbiased manner. Rule 1.7 (a)(1) of the Rules of Professional Conduct states:

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:

(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client....

That is a subjective determination that individual prosecutors must make. Should a prosecutor determine that he or she could not, in an unbiased manner, prosecute a county official whose office the prosecutor is charged to represent, the prosecutor should seek recusal and request that the Court appoint a special prosecutor to handle the matter.

Several cases from around the country support the Committee's position in this matter. See e.g. State of Arizona vs. Brooks, 126 Ariz. 395 616 P.2d 70 (1980); Ward vs. Superior Court of State for City of Los Angeles, 70 Cal.App.3rd 23, 128 Cal.Rptr. 532 (1977); U.S. vs. Troutman, 814 F.2d 1428 (10th Cir. 1987).

If the prosecuting attorney in question has obtained any information through the representation of the office of a particular county official relating to an investigation or prosecution of that official, the prosecuting attorney should seek recusal, People vs. Johnson, 105 Cal.App.3d 887, 164 Cal.Rptr. 746, 750 (1980). Rule 1.6 of the Rules of Professional Conduct requires such recusal.

Conclusion: The Legal Ethics Committee holds that it is not a conflict of interest per se for West Virginia county prosecuting attorneys to investigate and/or prosecute county officials. The prosecutor is charged with representing only the office, not the individual occupying the office. If, however, the prosecutor's earlier representation of that office has provided the prosecutor with information which the prosecutor would be called upon to use in an investigation or prosecution of such official, the prosecutor must seek recusal. Similarly, if the prosecutor has developed a relationship with the official which would make it impossible to proceed in an unbiased manner, the prosecutor should seek recusal.

Arthur M. Recht, Chairman
Committee on Legal Ethics