LEO: Commonwealth's Attorney - Appearance  LE Op. 1114

 

Commonwealth's Attorney - Appearance of Impropriety in

Representation of Decedent's Family in Wrongful Death Action

Having Previously Prosecuted the Reckless Driving Charges

Against the Defendant.

 

July 13, 1988

 

You advise that Attorney A was employed by a decedent's family to bring a

wrongful death action against D. The Commonwealth's attorney in that

jurisdiction unsuccessfully sought the issuance of a reckless driving

warrant against D. Subsequently, A associated the Commonwealth's attorney

for the purpose of trying the wrongful death action in the circuit court

of the county for which he is Commonwealth's attorney.

 

You wish to know whether the Commonwealth's attorney may ethically

represent the plaintiff under these circumstances.

 

Discipline Rule 9-101(B) [ DR:9-101] provides that an attorney shall

not accept private employment in a matter in which he had substantial

responsibility as a public employee. Although no formal charges were

brought against the defendant, the Commonwealth's attorney pursued a

course of conduct within the scope of his duties which could have resulted

in a criminal indictment. Therefore, the Committee opines that it would be

improper for the Commonwealth's attorney under these circumstances to

represent the plaintiff.

 

See also LE Op. 1012, LE Op. 942, LE Op. 702 and LE Op. 285.

 

Committee Opinion July 13, 1988