Legal Ethics Opinion No. 1415

  Commonwealth's Attorney--Communication With Adverse Parties--
Criminal Law: Prosecuting Cross-Warrants When the Victim/Witness
Called by the Commonwealth is also a Defendant to be Prosecuted
by the Commonwealth

You have presented a hypothetical situation in which there is a
dispute and alleged fight involving four women, three of whom are
involved with cross-warrants.  Co-defendants #1 and #2 are both
victims and defendants.  Co-defendants #2 and #3 are both victims
and defendants.

You have asked the committee to opine whether, under the facts of
the inquiry, a Commonwealth's Attorney can or should prosecute a
cross-warrant situation where the victim/witness called by the
Commonwealth is also a defendant to be prosecuted by the
Commonwealth.

The committee believes that no attorney-client relationship
exists either between the victim/witness and the prosecutor or
between the defendant and the prosecutor.  Thus, the committee
further believes that the ethical provisions related to conflicts
of interest are inapplicable to the circumstances you describe.  

The committee is of the opinion, however, that the applicable
Disciplinary Rules related to your inquiry are DR 8-102(A)(1)
which states that a prosecutor in criminal litigation shall
refrain from prosecuting a charge that the prosecutor knows is
not supported by probable cause; DR 8-l02(A)(2) which precludes a
public prosecutor from inducing an unrepresented defendant to
surrender important procedural rights; DR 7-l03(A)(l) which
precludes a lawyer from communicating with a represented adverse
party in that matter without the prior consent of the lawyer
representing the party or unless he is authorized by law to so
communicate; and DR 7-l03(A)(2) and (B) which require an attorney
who is dealing with an unrepresented individual to refrain from
giving advice to that person and from stating or implying that
the attorney is disinterested in the matter at hand.   

In addition to the applicable ethical provisions, the committee
directs your attention to the Commonwealth's Attorney's statutory
powers which afford a fair amount of discretion in the
prosecution of Class l, 2, and 3 misdemeanors.  15.1-8.1(B),
Code of Virginia.  Thus, assuming the matters in question
constitute misdemeanor charges, the decision to prosecute appears
to be within the broad discretionary powers granted the
Commonwealth's Attorney by statute and the Code of Professional
Responsibility. 

The committee has earlier opined that where an individual was a
defendant in one matter, represented by an attorney, and was
simultaneously assisting police in other drug investigations
which resulted in charges against a second defendant, it was
improper for the second defendant's attorney to communicate with
the first defendant without having first received consent from
the first defendant's attorney.  See LEO #l28l.

In the facts you posit, the committee is of the opinion that, if
the Commonwealth's Attorney believes that each cross-warrant is
supported by probable cause, he can ethically prosecute each
despite the likelihood that he will alternately be supporting and
attacking the individual's credibility, since he owes no duty of
loyalty to the victim/witness/defendant.  Nevertheless, the
committee cautions that issues related to the defendants'
constitutional rights may be pertinent to the prosecutor's
decision to prosecute if the individual's testimony as a
victim/witness would impermissibly infringe upon her
constitutional protection against self-incrimination.

The committee opines that, where the victim/witness/defendant is
represented by counsel, any communication conducted between the
prosecutor and the victim/witness who is a defendant in a
cross-warrant would be improper and violative of DR 7-l03(A)(l)
unless the prosecutor had received prior consent from the
individual's defense attorney.   Where the witness is also an
unrepresented defendant in a cross-warrant, the committee is of
the opinion that the prosecutor must affirmatively inform the
defendant that the prosecutor's interests in that matter are
adverse to the defendant's.  Furthermore, the committee cautions
that the prosecutor must constantly guard against any violation
of DR 8-l02(A)(2) which prohibits a prosecutor from inducing an
unrepresented defendant to Legal surrender important procedural
rights in the cross-warrant. 

The factual assessment required in order to determine whether or
not the Commonwealth's Attorney is required (should) to prosecute
the cross-warrants you have described is beyond the purview of
this committee.

Committee Opinion
June 13, 1991