Virginia State Bar Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Virginia State Bar, with full citations and source links on every page.
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Can a Virginia prosecutor dismiss criminal charges in exchange for the defendant releasing civil claims arising from the arrest or prosecution?
Yes, there is no per se ban, but only while probable cause supports the charge. A prosecutor may not maintain a charge that lacks probable cause to extract a release, and may not bring or trump up cha…
Does a Virginia prosecutor's ethical duty to disclose exculpatory evidence go beyond Brady, and must a prosecutor reveal that a key witness has died during plea talks?
Yes to the first: Rule 3.8(d)'s 'timely disclosure' duty is broader than Brady and requires disclosure as soon as practicable, not just in time for trial. On the second, a prosecutor may not make a fa…
Can a criminal defense lawyer advise a client to accept a plea deal that waives the right to claim ineffective assistance, and can a prosecutor require it?
No to both. A defense lawyer cannot ethically advise a client to waive future ineffective-assistance claims because of a non-waivable conflict between the lawyer's interest and the client's (Rules 1.7…
Can a prosecutor condition a plea offer on defense counsel keeping a witness's identity secret from the defendant, and can defense counsel withhold that information to get a better plea?
No on both. A prosecutor who has disclosed a witness to defense counsel cannot then require counsel to withhold that relevant information from the client, and defense counsel cannot keep salient facts…
Can a Virginia prosecutor prosecute defendants represented by a lawyer with whom the prosecutor co-owns a law office building and equipment?
No. The opinion concludes that where a prosecutor co-owns the office building and law-practice equipment with the defense lawyer and shares mortgage and loan obligations tied to that law practice, the…
Are Virginia prosecutors held to the same competence and diligence duties as other lawyers, and can an excessive caseload be an ethics violation?
The opinion concludes the duties of competence (Rule 1.1) and diligence (Rule 1.3) apply equally to Commonwealth's Attorneys, with no lower standard for prosecutors; a caseload so large it precludes c…
Does a prosecutor violate the ethics rules by telling a defendant in open court that he will be tried by a jury, likely facing a longer sentence, if he appeals his conviction?
The opinion concludes no. Rule 3.8's special prosecutor restrictions do not reach this statement, and no general rule on lawyer communications prohibits the prosecutor's remark that the defendant woul…
Can a private law firm hold a fee-collection contract with a Commonwealth's Attorney while also defending criminal cases prosecuted by that same office?
The opinion concludes no. Once a defense attorney contracts to collect fines for a Commonwealth's Attorney, the prosecutor's personal-interest conflict under Rule 1.7(b) cannot be cured (the client is…
Can a prosecutor warn the Commonwealth's witnesses about deceptive tactics used by defense investigators without violating the duty not to discourage cooperation with the defense?
Partly. The opinion concludes a prosecutor may tell prosecution witnesses that defense investigators may contact them, identify those investigators by name, and tell witnesses they are free to speak o…
Can a Commonwealth's Attorney serve on the advisory board of a local Alcohol Safety Action Program, and can that program be administered out of the prosecutor's own office?
Split. The opinion concluded it is not improper for a Commonwealth's Attorney to serve on the ASAP advisory board, consistent with prior opinions allowing prosecutors to sit on community boards that d…
Can a prosecutor make public statements about someone under investigation when no charges have been filed and a jury trial is only possible?
The opinion concluded that whether a prosecutor's extrajudicial statements created a clear and present danger of interfering with a fair jury trial is a fact question beyond the committee, but if a fa…
Can a part-time prosecutor in private civil practice send a letter threatening law-enforcement action to gain an advantage for a private client?
No. The opinion concluded that a letter warning the recipient that the lawyer would otherwise seek assistance through law enforcement and legal avenues was a threat, and because the lawyer had told th…
Did a prosecutor's pretrial statements to newspapers about a murder defendant violate the rule against extrajudicial statements that endanger a fair trial?
The committee declined to decide whether the statements actually created a clear and present danger to a fair trial, calling that a fact-bound legal question beyond its purview; it noted only that if …
Can a Commonwealth's Attorney sit in a quasi-judicial role reviewing a grievance panel decision when he earlier served on the same agency's board and is close to the people involved?
The committee concluded that the prosecutor should not serve in the quasi-judicial capacity, because the cumulative effect of his prior board service, close personal relationships, and earlier involve…
Can a prosecutor pursue cross-warrants where the same person is both a Commonwealth witness and a defendant, and how may the prosecutor talk to that person?
The committee concluded that because no attorney-client relationship exists between the prosecutor and the parties, conflict rules do not apply, and a prosecutor who believes each cross-warrant is sup…
Can an assistant Commonwealth's Attorney prosecute a perjury case in which his own chief prosecutor must testify about the investigation?
The committee concluded that, because an indictment is a preliminary proceeding (not a conviction) and the defense may offer contrary evidence absent a guilty plea, it would be improper for the assist…
Can a law firm defend criminal cases that a partner had substantial responsibility for while he was an assistant Commonwealth's attorney?
The committee concluded that reading police reports, summarizing them, preparing witness lists, and preparing cases for preliminary hearings amount to substantial responsibility under DR 9-101(B), so …
Can a firm defend a civil case when one of its partners prosecuted the same client in a criminal proceeding from the same incident?
The committee concluded the firm's representation creates an appearance of impropriety under DR 9-101(B) because a partner had prosecuted the client in the related juvenile proceeding, and that no con…
Can a Commonwealth's Attorney prosecute an embezzlement case where a former law-firm colleague was a shareholder and agent of the victim?
The committee concluded LE Op. 1046 was dispositive; under that opinion the prosecution would be proper if the prosecutor could rebut the presumption that he acquired confidential information from his…
Can a part-time assistant Commonwealth's attorney handle personal-injury cases in a jurisdiction where the office also prosecutes crimes, if separate offices and phone lines screen the two roles?
The committee concluded that DR 5-105 and its imputation provision barred the part-time assistant Commonwealth's attorney, and others in the office, from civil matters related to a prosecution the off…
Can a lawyer's partner, who as an assistant Commonwealth's attorney prosecuted a man for rape, now help sue that man civilly on behalf of the victim?
The committee concluded it would be improper, because the partner had participated in the criminal prosecution of the same opposing party; a former assistant Commonwealth's attorney may take the victi…
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?
The committee concluded that DR 5-101(A) required the defense lawyer to disclose the incoming prosecutor's future employment to affected clients and obtain their consent, and suggested the relationshi…
Can a prosecutor arrange for a third party to secretly tape a represented suspect without the suspect's lawyer's consent?
The committee concluded it is improper for a commonwealth's attorney to communicate with a represented, uncharged suspect through a taping intermediary, or to have police implement such a taping plan,…
Can a defense lawyer take criminal cases in a court where the lawyer's spouse serves as a prosecutor?
The committee concluded a defense attorney whose spouse prosecutes welfare fraud in the same courts may defend criminal cases generally, but may not defend the welfare fraud cases the spouse prosecute…
Can the spouse and law partner of a part-time prosecutor handle a real estate matter that needs that prosecutor's official approval or advice?
The committee concluded that the spouse and law partner of a part-time commonwealth's, city, or county attorney may not take a real estate matter requiring plat approval if that prosecutor would have …
Can a prosecutor or assistant prosecutor testify in a case that another lawyer in the same Commonwealth's attorney's office is prosecuting?
The committee concluded that a Commonwealth's attorney's office is subject to the same restrictions as a private law firm, so it would be improper for a Commonwealth's attorney or an assistant to test…
May a part-time Commonwealth's Attorney in a small county also serve as counsel for the county's Public Service Authority and Industrial Development Authority?
The committee concluded it is not ethically improper for the Commonwealth's Attorney of a county under 15,000 inhabitants to also serve as counsel for the county's Public Service Authority and Industr…
May a defense attorney practice criminal law in a jurisdiction where the attorney's spouse is an Assistant Commonwealth's Attorney?
The committee concluded it is ethically permissible, with full disclosure and the client's consent under Canon 5, for an attorney to practice criminal law where the spouse is an Assistant Commonwealth…
May a law firm defend cases that arose while one of its lawyers was an Assistant Commonwealth's Attorney, if that lawyer had no involvement in them as a prosecutor?
The committee concluded it is not improper for the present firm of a former Assistant Commonwealth's Attorney to defend cases that arose during the lawyer's time in the prosecutor's office, so long as…
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Legal ethics opinions from the Virginia State Bar interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.