Can a West Virginia lawyer keep representing a criminal defendant when partners in the firm previously did civil work for the corporation that is the alleged victim?

Plain-English summary

A West Virginia attorney had been retained by an individual charged, on a warrant sworn by a Berkeley County deputy sheriff, with embezzling money from a Berkeley County corporation. After taking a retainer, the lawyer learned that two of his associates had represented that corporation, the alleged victim, from time to time in related civil matters. He asked whether continuing to represent the individual would violate Canon 5 of the Code, and reported that he had explained the potential conflict to the client and she still wanted him to continue.

The Committee responded that, based on the facts presented, it was the judgment of the Committee's chairman that there would be no conflict of interest in the representation if (1) the lawyer fully informed the client of the fact that his partners had previously represented the alleged-victim corporation and (2) she still chose to retain him.

The opinion added that the lawyer would be wise to obtain a statement in writing from the client acknowledging (1) that she understands the prior relationship of the firm to the victim corporation and (2) that she still wishes the lawyer to represent her.

Currency note

This opinion was issued in 1979, before West Virginia replaced its Code of Professional Responsibility (and the Canons 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 Treat this page as historical context, not current guidance.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: Was there a conflict in continuing to represent the defendant?

A: The opinion concluded there would be no conflict of interest so long as the lawyer fully informed the client that his partners had previously represented the alleged-victim corporation and she still chose to retain him.

Q: Did the prior representation have to be disclosed to the client?

A: Yes. The opinion conditioned its no-conflict conclusion on the lawyer fully informing the client of the fact that his partners had previously represented the corporation that was the alleged victim.

Q: Did the opinion require the client's consent in writing?

A: It did not require it, but it advised that the lawyer would be wise to obtain a written statement from the client acknowledging that she understands the prior relationship and still wishes the lawyer to represent her.

Background and rules framework

The inquiry was framed under Canon 5 of the West Virginia Code, which addresses a lawyer's duty to exercise independent professional judgment on behalf of a client, including the conflicts that can arise from interests of other clients. The Committee treated the prior representation of the alleged-victim corporation by the lawyer's partners as a matter that had to be disclosed to the client, with the representation permissible once the client was informed and chose to continue.

Citations and references

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

• Canon 5 (independent professional judgment on behalf of a client)

See also

• WVSB Ethics Op. 89-01: Conflicts of interest in real estate practice
• WVSB Ethics Op. 85-2: Prosecutor's office is not a law firm for imputed disqualification
• WVSB Ethics Op. 81-10: Firm conflict between county officials and criminal appointments

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f665517775ace50.pdf

Original opinion text

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

THE WEST VIRGINIA STATE BAR
COMMITTEE ON LEGAL ETHICS

UNPUBLISHED LEGAL ETHICS INQUIRY 79-13

(October 5, 1979)

I have discussed your legal ethics inquiry with John O. Kizer, Chairman of The West Virginia State Bar Committee on Legal Ethics. Based on the facts presented in your letter of May 25, 1979, it is his judgment that there would be no conflict of interest in your representation of Ms. _ if (1) you fully inform her of the fact that your partners had previously represented the alleged victim corporation and (2) she still chooses to retain you. Mr. Kizer believes that you would be wise to obtain a statement in writing from Ms. ___ acknowledging (1) that she understands the prior relationship of your firm to the victim corporation and (2) that she still wishes you to represent her.

We hope that this information will be helpful to you.

LETTER OF INQUIRY
RE: 79-13

May 25, 1979

TO WHOM IT MAY CONCERN:

I am an attorney in _____, West Virginia, and have been contacted by an individual who desires my representation regarding criminal charges that have been brought against her. She has been charged by a warrant sworn to by a Deputy Sheriff of Berkeley County with embezzling a sum of money from a Berkeley County corporation. Following my receiving a retainer from this individual, I was advised by two of my associates that they have represented the corporation which was the alleged victim in this case from time to time in related civil matters. I am concerned with whether my continued representation of the individual would violate Canon 5 of the Code of Ethics.

I have explained the potential conflict to my client, and she advises me that she desires my continuing to represent her. I would appreciate you advising me as promptly as possible as to whether or not you feel this is in violation of Canon 5 so this matter may be resolved as quickly as possible.