LEO #1682 PARTICIPATION BY COMMONWEALTH'S ATTORNEY AND/OR DEFENSE
          COUNSEL ON BOARD WHICH WILL SET POLICIES AND STANDARDS TO
          BE APPLIED TO INDIVIDUALS PROSECUTED OR DEFENDED BY THOSE
          ATTORNEYS

You have presented a hypothetical situation in which a
Commonwealth's Attorney or a defense attorney participates on the
Community Criminal Justice Board (CCJB).  You indicate that Article
2, Title 53.1 of the Code of Virginia established the Comprehensive
Community Corrections Program (CCCP) to permit localities to
establish community based programs for defendants who are
considered suitable candidates for diversion programs or
alternatives to incarceration in a local correctional facility. 
You further state that the CCJB is responsible for the development,
implementation, operation and evaluation of the policies and
procedures pertaining to implementing the CCCP.  Unlike its
predecessor (the Community Corrections Resource Board) the CCJB
does not make findings or recommendations in individual cases. 
  
By statute, the Commonwealth's Attorney is required to sit on the
CCJB.  You have asked the committee to opine as to the ethical
propriety of a Commonwealth's Attorney or a defense attorney
participating on a CCJB, if the policies and standards set by that
Board may be applied to individuals prosecuted or represented by
those attorneys.

The appropriate and controlling Disciplinary Rules relative to your
inquiry are Disciplinary Rules 4-101(A), 8-101(A)(1) and (2), and
9-101(C).

The Committee has previously opined that it is not per se improper
for a prosecuting or defense attorney to sit on such a Board.  See
Legal Ethics Opinion No. 1268.

In the facts you present, the committee believes, as it opined in
LEO No. 1268, that it is not improper per se for a Commonwealth's
Attorney or a defense attorney to sit on the CCJB.  Nevertheless,
the committee believes that the attorney in the instant
hypothetical must still be cognizant of the cited controlling
Disciplinary Rules.  First, under Disciplinary Rule 4-101(A), the
Commonwealth's Attorney and the defense attorney particularly must
be careful that they do not reveal client confidences and secrets
to the CCJB.  Secondly, pursuant to Disciplinary Rules 8-101(A)(1)
and (2), the same attorney may not use the CCJB to obtain a special
advantage for himself, a client, or to influence a tribunal. 
Thirdly, the attorney shall not state or imply to his client that
the attorney can improperly influence another CCJB member or any
tribunal.  [See DR 9-101(C)].  This being said, the committee
opines that it is not improper for a Commonwealth's Attorney or
defense attorney to be a member of the CCJB.
            
The committee observes that the attorneys in your hypothetical are
even less likely to be in violation of the Disciplinary Rules than
an attorney on the CCRB in LEO No. 1268, since unlike the CCRB, the
CCJB does not make findings or recommendations in individual cases. 
Thus, the committee feels that since the CCJB evaluates and
monitors community plans and does not determine a particular
defendant's eligibility for a program, there is an additional
safeguard that was lacking in the old CCRB.

[DRs 4-101, 8-101, 9-101; LEO 1268]

Committee Opinion
May 16, 1996