When an assistant Commonwealth's attorney has agreed to join a defense firm, can the firm keep defending cases that the incoming prosecutor is still prosecuting in the meantime?

Plain-English summary

A defense firm reached an agreement for the area's assistant Commonwealth's attorney to join the firm effective January 1988. In the interim, the assistant Commonwealth's attorney was prosecuting many criminal cases in general district and circuit court, while the inquiring lawyer handled criminal defense work in the other two courtrooms. The inquiry asked whether the lawyer could continue to defend cases that the assistant Commonwealth's attorney was prosecuting in the period before the move.

The committee found DR 5-101(A) controlling. That rule bars a lawyer from accepting employment if the exercise of professional judgment for the client may be affected by the lawyer's own financial, business, property, or personal interests, except with the client's consent after full and adequate disclosure. The committee opined that the inquiring lawyer had to disclose to clients in the affected cases the fact that the assistant Commonwealth's attorney had accepted future employment with the firm, and that the client's consent had to be obtained before the lawyer could represent that client.

The committee opined that the same conflict existed from the assistant Commonwealth's attorney's side under DR 5-101(A). Because the Commonwealth's attorney represents the public and the defendant's rights could be affected, the committee suggested that the relationship between the two lawyers be disclosed to the court and that all parties' consent be reflected on the record. It added that a strong ethical consideration, referring to EC 9-2, should be examined by the Commonwealth's attorney in allowing the assistant to represent the public in any matter involving the inquiring lawyer or the firm. The committee note records that current Rule 1.11 allows a firm to avoid disqualification in certain circumstances by screening the former government lawyer.

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. The committee note describes screening under current Rule 1.11. 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 Treat this page as historical context, not current guidance.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 defense lawyer keep defending cases the incoming prosecutor is still prosecuting?

A: Under this 1987 opinion, only after disclosure and consent. The committee read DR 5-101(A) to require disclosing the prosecutor's future employment with the firm to affected clients and obtaining their consent.

Q: Does the prosecutor have a conflict too?

A: The committee opined that the same conflict existed from the assistant Commonwealth's attorney's side under DR 5-101(A), and suggested disclosure to the court with all parties' consent reflected on the record.

Q: What did the committee say the Commonwealth's attorney should consider?

A: It referred the inquirer to EC 9-2 and said a strong ethical consideration should be examined before allowing the assistant to represent the public in any matter involving the inquiring lawyer or the firm.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(A), which addresses personal-interest conflicts (the counterpart of ABA Model Rule 1.7(a)(2)), and referred to Ethical Consideration 9-2 on avoiding even the appearance of professional impropriety. The committee note maps the screening question onto current Virginia Rule 1.11, the counterpart of ABA Model Rule 1.11 governing former government lawyers.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(A) (personal-interest conflicts; client consent after disclosure)
• Former Virginia EC 9-2 (avoiding the appearance of impropriety)
• Virginia Rule 1.11 / ABA Model Rule 1.11 (former government lawyers; screening)
• ABA Model Rule 1.7 (personal-interest conflicts)

See also

• VA LEO 1020: Assistant Commonwealth's Attorney in Related Civil Cases
• VA LEO 1012: A Partner Who Prosecuted the Defendant Now Suing Him Civilly
• VA LEO 1250: Firm Disqualified by a Former Assistant Commonwealth's Attorney

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1008.pdf

Original opinion text

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

Committee Opinion
November 24, 1987
LEGAL ETHICS OPINION 1008

COMMONWEALTH’S ATTORNEY –
PERSONAL INTERESTS AFFECTING
PROFESSIONAL JUDGMENT.

You advise that your firm recently reached an agreement whereby the assistant
Commonwealth's attorney in your area will join your firm effective January, 1988. At the
present time, the assistant Commonwealth's attorney handles many criminal cases in
general district and circuit court while you handle criminal work in the other two
courtrooms.
You wish to know whether or not it is proper for you to continue to defend cases which
the assistant Commonwealth's attorney prosecutes between now and the beginning of
1988.
We feel that Disciplinary Rule 5-101(A) controls this situation. Disciplinary Rule 5101(A) [ DR:5-101] states that "a lawyer shall not accept employment if the exercise of
his professional judgment on behalf of his client may be affected by his own financial,
business, property or personal interests, except with the consent of his client after full and
adequate disclosure under the circumstances."
The Committee, therefore, opines that you must disclose to clients in whose cases the
assistant Commonwealth's attorney will be associated the fact that the assistant
Commonwealth's attorney has accepted future employment with your office. Consent of
the client must be received before you may represent him/her.
It is our feeling that the same conflict exists from the assistant Commonwealth's
attorney's perspective as it applies under DR:5-101(A). Since the Commonwealth's
attorney represents the public and the defendant's rights could be affected, we suggest
that the relationship between you and the assistant Commonwealth's attorney ought to be
disclosed to the court and that consent of all parties should be reflected on the record.
In addition, we believe that a very strong ethical consideration ought to be examined in
this case by the Commonwealth's attorney in allowing the assistant Commonwealth's
attorney to represent the public in any matter in which you or your law firm is involved.
We refer you specifically to Ethical Consideration 9-2 [ EC:9-2].
Committee Opinion
November 24, 1987
Legal Ethics Committee Notes. – Rule 1.11 allows a law firm to avoid disqualification
in certain circumstances if it screens the former government lawyer.