LEGAL ETHICS OPINION #1671    COMMONWEALTH'S ATTORNEY ALSO WORKING
                              AS CITY ATTORNEY
 
You have presented a hypothetical situation in which Attorney A is
the elected Commonwealth's Attorney and is also employed in the
same jurisdiction as City Attorney to represent the municipality in
civil litigation and to render advice in civil matters.  Attorney
A has an assistant, Attorney B, who serves as both Assistant
Commonwealth's Attorney and Assistant City Attorney.  During
Attorney A's tenure as Commonwealth's Attorney/City Attorney, a
building inspector for the municipality allowed occupancy of a
building without issuing a certificate of occupancy, and the
building inspector never required the builder to complete the
project.  A notice of violation was issued to the builder, but no
other action was taken, apparently after a consultation with
Attorney A, which took place during the time the builder was being
prosecuted as described infra.

Due to several violations by the builder, the State Police
conducted an investigation.  Subsequently, the Attorney A, in his
capacity as Commonwealth's Attorney, obtained an indictment against
the builder.  Attorney A should have been aware that the building
inspector, with whom he consulted in advising the municipality as
its City Attorney, did not enforce the Virginia Uniform Statewide
Building Code.  To obtain evidence concerning the criminal
prosecution, Attorney B interviewed extensively the building owner. 
The information would also have been useful to Attorney A in his
capacity as City Attorney in advising the City of any potential
liability.  The building owner initiated a civil suit against the
builder and the building inspector.  The criminal case against the
builder was nolle prosequed because a witness/co-defendant was
unavailable.  Effective July 1, 1995, the offices of City Attorney
and the Commonwealth's Attorney separated.  Attorney A resigned as
City Attorney, and in his capacity as Commonwealth's Attorney has
refused to consider prosecution of the builder, although the
witness/co-defendant is now available.  Attorney B has become the
new City Attorney and has resigned from his position as Assistant
Commonwealth's Attorney.

Under the facts you have presented, you have asked the committee to
opine as to 1) the propriety of Attorney A representing the
Commonwealth in prosecuting the builder and in taking action to
nolle prosequi the builder's felony indictment while simultaneously
representing the City which faces possible civil liability for the
conduct of the building inspector; 2) whether Attorney A could
represent the Commonwealth in evaluating whether to revive the
criminal charge after Attorney A resigned as City Attorney; and 3)
whether Attorney B, acting as City Attorney, could represent the
City in the civil dispute after having interviewed the building
owner.

The appropriate and controlling disciplinary rules relative to your
inquiry are DR 4-101(B) requiring an attorney to preserve client
confidences and secrets; DRs 5-105(A) and (B) which require an
attorney to decline or withdraw from representing a client whose
interests conflict with those of another client, if the lawyer's
independent professional judgment will be or is likely to be
adversely affected; DR 5-105(C) which allows an attorney to
continue representing multiple clients with conflicting interests
if it is obvious that he can represent the interests of each,
provided the clients consent after adequate disclosure; and DR 5-
105(D) which prohibits representation of a client adverse to a
former client if the legal matters are substantially related unless
the former client consents after full disclosure.  Also applicable
is DR 5-105(E) which vicariously disqualifies all other attorneys
in an office or law firm if one of its lawyers must withdraw due to
a conflict under any of the provisions of DR 5-105. 

The committee has previously opined that DR 5-105 prohibits an
attorney from representing multiple clients if the lawyer's
obligations to one client will likely adversely affect the lawyer's
independent professional judgment on behalf of another client.  In
Legal Ethics Opinion #1271, the committee examined a situation
where a part-time Commonwealth's Attorney undertook to defend a
husband and wife in a civil action in which they were accused of
fraudulent conduct which could ostensibly require the part-time
Commonwealth's Attorney to launch a criminal investigation.  Citing
DR 5-105(B) and (C), the committee reasoned that if the trier of
fact in the civil action were to find that the husband and wife
engaged in fraud, a conflict would arise in the lawyer's
representation of both the Commonwealth and the husband and wife. 
Since it was not obvious that the attorney could adequately
represent the interests of each, the conflict would not be curable
if the husband and wife were to waive the conflict.   

The committee has emphasized that under DR 5-105(C) unless an
attorney can meet the threshold test of "obviously adequate
representation" an attorney cannot represent multiple parties with
conflicting interests and client consent will not cure the
conflict.  Legal Ethics Opinion #1393. 

In the facts you present, the committee believes Attorney A, in his
capacity as both the Commonwealth's Attorney and the City Attorney
had a conflict of interest in prosecuting the builder while at the
same time advising the building inspector and representing the
City's interests in the civil matter.  In zealously representing
the Commonwealth against the builder, he likely would have
discovered the facts and circumstances surrounding the builder's
dealings with the building inspector which would likely be adverse
to the defense of the building inspector and the interests of the
City.  Moreover, Attorney A's situation would be similar to the
scenario in LEO #1271 if Attorney A had reason to believe that the
building inspector's conduct warranted a criminal investigation
(i.e., if builder and inspector acted in concert to defraud owner). 
Your facts suggest that Attorney A's loyalty to and zealous
advocacy of the Commonwealth may have been compromised in that he
refuses to renew the prosecution now that the missing witness has
become available.  This conflict is not curable by waiver since it
is not obvious that Attorney A can adequately represent the
conflicting interests of both the City and the Commonwealth.  Even
if Attorney A reasonably believed that he could do so, Attorney A
could not make the required disclosure and obtain the consent of
the City and the Commonwealth necessary to comply with DR 5-105(C).

Attorney A's departure from the City Attorney's office and his
assumption of duties as a full-time Commonwealth's Attorney does
not remove the conflict.  His decision as to whether to revive the
criminal prosecution of the builder remains compromised or
influenced by his duties to his former clients, the City and
building inspector, under DR 5-105(D).  The committee believes that
the owner's civil suit against the builder and building inspector
arises from the same facts which are the basis of the criminal
prosecution and therefore the two matters are "substantially
related." The interests of the City and the Commonwealth are
materially adverse.  Again, because Attorney A cannot make the
requisite disclosure to and obtain waiver from the City, the
conflict is not curable by consent.

The committee believes that Attorney B may ethically represent the
City in the civil action filed by owner against the building
inspector.  Although Attorney B interviewed Owner to obtain
information relevant to the criminal prosecution and did not
disclose his role as an Assistant City Attorney, your facts do not
suggest that Owner was represented by counsel or that Attorney B
gave legal advice to an unrepresented party.  DR 7-103(A). 
Moreover, the committee is of the opinion that Attorney B's
interview with Owner did not create an attorney-client relationship
nor expectation of confidentiality which would foreclose, under DR
4-101(B), the use of any information acquired during that
interview.  Since Attorney B's prior contacts with Owner did not
involve the purpose of obtaining professional employment or legal
advice, the obligations under DR 4-101 do not apply.  See Legal
Ethics Opinion #1570.  See also Wolfram, Modern Legal Ethics
13.10.1 (1986)(The office of prosecutor can best be conceptualized
as a lawyer with no client but several constituencies.  Victims of
crimes are not clients of prosecutors.)

[DRs 4-101(B), 5-105, 7-103(A); LEO 1271, 1393, 1570; Wolfram,
Modern Legal Ethics 13.10.1 (1986)]

Committee Opinion
April 1, 1996