LEO: Commonwealth's Attorney - Appearance of  LE Op. 1319

 

Commonwealth's Attorney - Appearance of Impropriety -

Conflict of Interests: Commonwealth's Attorney-Elect

Continuing to Represent Defendants While Awaiting

Being Sworn Into Office.

 

February 27, 1990

 

Your letter was written while you were Commonwealth's attorney-elect,

approximately five weeks prior to your assuming office. You have requested

that the Committee opine as to the propriety of a Commonwealth's attorney-

elect continuing to represent criminal defendant clients in the

jurisdiction in which he will subsequently serve as chief prosecutor,

prior to his assuming office. The Committee is cognizant of the fact that

a Commonwealth's attorney-elect neither holds the office nor is required (

or permitted) to perform the duties of the office to which he has been

elected.

 

Since you have now been installed in office, it is the opinion of the

Committee that your inquiry appears to be a moot question. Nevertheless,

the Committee believes that the disciplinary rule applicable to your prior

role as a private attorney while awaiting the assumption of the office of

Commonwealth's attorney is DR:9-101(C) which requires that, in order to

avoid even the appearance of impropriety, a lawyer shall not state or

imply that he is able to influence improperly or upon irrelevant grounds

any tribunal, legislative body, or public official. Further guidance may

be gleaned from Ethical Consideration 9-2 [ EC:9-2] which suggests that

 

Public confidence in law and lawyers may be eroded by irresponsible or

improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may

appear to laymen to be unethical. ... While a lawyer should guard against

otherwise proper conduct that has a tendency to diminish public confidence

in the legal system or in the legal profession, his duty to clients or to

the public should never be subordinate merely because the full discharge

of his obligation may be misunderstood or may tend to subject him or the

legal profession to criticism. When explicit ethical guidance does not

exist, a lawyer should determine his conduct by acting in a manner that

promotes public confidence in the integrity and efficiency of the legal

system and the legal profession. (emphasis added)

 

Thus, the Committee believes that although there may not have been any

per se impropriety during the interim period in continuing to represent

defendants before the same courts in which you now prosecute, your

attention is emphatically directed to the above-cited Disciplinary Rule

and Ethical Consideration and the need to guard against any implication of

improper influence. The Committee is of the opinion that the Rule requires

that a lawyer may not suggest or imply the ability to obtain results

through improper governmental influence or political power. In addition,

the committee believes that it is irrelevant whether a lawyer making such

a suggestion or implication actually intends or attempts to influence the

tribunal, legislative body, or public official; the suggestion or

implication alone is enough to bring the profession into disrepute. (See,

e.g., Mississippi Attorney v. Mississippi State Bar, 453 So.2d 1023 (1984);

In re Fasig, 444 N.E.2d 849 (Ind. 1983). See also ABA Informal Opinion

1215 (May 18, 1972))

 

Furthermore, the Committee cautions that in the situation you pose there

are concerns regarding any effect the dual loyalties of the Commonwealth's

attorney-elect may have on the rights of his present defendant clients.

The Committee believes that it is foreseeable that the defendant may at

some point question his counsel's possible prejudice or ineffective

assistance, in light of the attorney's ultimate assumption of public

office as prosecutor. (See also LE Op. 1043)

 

Finally, the Committee directs your attention to DR:7-101(A)(2) which

requires that a lawyer shall not intentionally fail to carry out a

contract of employment entered into with a client for professional

services except under the Code's provisions for withdrawal. Thus, the

Committee is of the opinion that during the interim between a public

election and installation into office, an individual who is a

Commonwealth's attorney-elect should not accept cases which are likely to

remain uncompleted at the time of his assumption of the office.

 

Committee Opinion February 27, 1990