LEO #1619 CONFLICT OF INTEREST; ATTORNEY DEFENDING CLIENTS AGAINST
          COMMONWEALTH'S ATTORNEY WHEN COMMONWEALTH'S ATTORNEY
          CONTINUES TO OWN STOCK IN LAW FIRM P.C. WHERE ATTORNEY IS
          EMPLOYED AND ALSO OWNS STOCK


You have presented a hypothetical situation in which an attorney is
one of two fifty percent stockholders and an officer and director
of a law professional corporation.  The attorney later leaves the
firm to become Commonwealth's Attorney. 

At first, the Commonwealth's Attorney position is part-time, and
the attorney continues as a sole practitioner in the private
practice of law for approximately three months.  At the end of the
three months, the Commonwealth's Attorney becomes a full-time
position, and the attorney discontinues the private practice of
law.  You indicate that the attorney, however, continues to own
stock in the former law professional corporation and continues as
an officer and director of the professional corporation due to an
inability of the Commonwealth's Attorney and the other stockholder
to agree on matters concerning the departure of the Commonwealth's
Attorney.  You advise that matters at issue include the amount of
money to be paid the Commonwealth's Attorney for his stock, the
monies that should be reimbursed by the Commonwealth's Attorney to
the law firm for costs advanced related to cases handled by the
Commonwealth's Attorney, and what portion of the fees taken by the
Commonwealth's Attorney should be reimbursed to the law firm.   

Finally, you indicate that the Commonwealth's Attorney's former
firm consists of two attorneys, one who owns fifty percent of the
stock in the professional corporation and the other who does not
own stock in the professional corporation.

You have asked the committee to opine, under the facts of the
inquiry, as to several issues related to attorneys of the law firm
defending clients in cases being prosecuted by the Commonwealth's
Attorney/shareholder.  

The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 4-101(B) which provides for the preservation of
client confidences and secrets; and DR 5-101(A) which states that
a lawyer shall not accept employment if the exercise of his
professional judgment on behalf of his client may be affected by
his own financial, business, property, or personal interests,
except with the consent of his client after full and adequate
disclosure under the circumstances.

The committee responds to your inquiries relative to the facts
presented as follows:

1.   As to whether the Commonwealth's Attorney is precluded from
     prosecuting criminal cases defended by members of his former
     firm, when those cases were accepted by the firm based on
     prosecutions that were initiated after the Commonwealth's
     Attorney left the firm, the committee believes that such
     prosecutions would be improper and violative of DR 5-101(A). 
     The committee is of the view that the Commonwealth's
     Attorney's continued financial participation in his former law
     firm represents a personal interest affecting his
     representation of the Commonwealth.  Although a cure to the
     personal conflict might be effected in other circumstances
     through the consent of the client after full disclosure, the
     committee believes that no such cure is available to the
     Commonwealth's Attorney, a constitutional officer elected by
     the public.  Furthermore, the committee has previously opined
     that it would be improper for a Commonwealth's Attorney to
     prosecute a suspect who was a client of the attorney prior to
     the attorney's assuming the office and when the suspect is
     represented by the Commonwealth's Attorney's former law firm. 
     See LEO #763.

2.   As to whether an Assistant Commonwealth's Attorney is
     precluded from prosecuting cases in the circumstances set
     forth in inquiry number l above, the committee finds that DR
     5-l0l(A) contains no provision for vicarious disqualification
     of the disqualified lawyer's partners or associates.  Cf. DR
     5-l05(E).

     Thus, the committee opines that it would not be per se
     improper for an Assistant Commonwealth's Attorney to prosecute
     cases defended by members of the Commonwealth Attorney's
     former firm, except as otherwise set forth in 4. below.

3.   The committee is of the opinion that the remaining attorneys
     in the Commonwealth's Attorney's former firm are not routinely
     precluded from accepting employment in criminal cases in the
     county wherein the Commonwealth's Attorney prosecutes cases.
     However, since those attorneys remaining in the firm are
     similarly subject to disqualification for a personal conflict
     under DR 5-l0l(A), they may only defend a client in the
     Commonwealth's Attorney's jurisdiction after consent is
     received from the client after full disclosure of the
     circumstances.  Furthermore, the committee cautions that the
     lawyers must make appropriate disclosures while recognizing
     that inappropriate or unnecessary disclosures could be
     violative of DR 9-l0l(C) which prohibits a lawyer from stating
     or implying an ability to improperly influence either the
     court or Commonwealth's Attorney.  See LEO #845.

4.   As to whether a special prosecutor should be appointed to
     represent the Commonwealth in all cases wherein the
     Commonwealth's Attorney's former law firm represents the
     defendant, the committee is of the opinion that a special
     prosecutor is required only if the Commonwealth's Attorney
     possesses confidences and secrets of a former client which
     could be used against the former client in the prosecution. 
     In such an instance, neither the Commonwealth's Attorney nor
     his Assistant may ethically prosecute the case.   See DR 4-
     l0l.
  
[DRs 4-101(B), 5-101(A), 5-105(E), 9-101(C); LEOs 763, 845]

Committee Opinion
November 29, 1994