LEGAL ETHICS OPINION 1713 PROPRIETY OF ASAP PROGRAM BEING
COMPONENT OF COMMONWEALTH'S
ATTORNEY'S OFFICE WITH
COMMONWEALTH'S ATTORNEY SERVING ON
ASAP ADVISORY BOARD
You inquired about the ethical propriety of having the local
Alcohol Safety Action Program (ASAP) included as a component of
your office, and your serving on the ASAP Advisory Board. The
local ASAP program is administered through the Commonwealth's
Attorney's Office with control over the hiring, salary,
promotion, and dismissal of ASAP employees subject to review by
the Commonwealth's Attorney. Also, the ASAP budget is part of
the Commonwealth's Attorney's Office budget, so monetary control
of the program is exercised to some extent by the Commonwealth's
Attorney.
The appropriate and controlling disciplinary rules relative to
your inquiry are DR 8-101(A)(2), DR 8-102(4), and DR 9-101(C).
DR 8-101(A)(2) states "A lawyer who holds public office shall not
use his public position to influence, or attempt to influence, a
tribunal to act in favor of himself or of a client."
DR 9-101(C) states "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."
The ethical considerations of EC 9-1, and EC 9-2 also give
guidance in this situation. EC 9-1 says "Continuation of the
American concept that we are to be governed by rules of law
requires that the people have faith that justice can be obtained
through our legal system. A lawyer should promote public
confidence in our system and in the legal profession." EC 9-2
elaborates further saying
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 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.
The committee will review your inquiry in two parts: 1) is it
improper for a Commonwealth's attorney to serve on the ASAP
board; and 2) is it improper for the ASAP to be administered
through the Commonwealth's Attorney's Office?
As to the first part of your inquiry, the committee has
previously opined in LEOs 1268 and 1682 that it is not improper
for a Commonwealth's attorney or a defense attorney to sit on the
Board of Directors of a community's Court Services or the
Community Corrections Resources Board or the Community Criminal
Justice Board, as long as the Board does not make determinations
regarding specific individuals prosecuted by the attorney. In
such instances where a Commonwealth's attorney or defense
attorney sits on a community board, the attorney must be careful
to follow DR 4-101(A) and not reveal any client confidences or
secrets; DR 8-101(A)(1) and (2) to not use his or her position on
this board to obtain an advantage for a client; and DR 9-101(C)
to make sure that the attorney does not state or imply to his or
her client that the attorney can improperly influence another
board member or any tribunal.
As to the second part of your inquiry, the committee believes
that due to the significant control the Commonwealth's Attorney's
Office has over the local ASAP program, laypersons could perceive
that as improper and thereby diminish the public's confidence in
the legal system or the legal profession. Another problem with
the local ASAP being administered from the Commonwealth's
Attorney's Office is that under the ASAP program is funded from
the fees of offenders assigned to the program with 10% going to
the State Committee overseeing all of the ASAP programs. Since
these funds can also include gifts and donations from public or
private sources, as allowed under VA Code 18.2-271.2(C)(4),
this could be seen as influencing the Commonwealth's Attorney's
Office as a whole instead of singly assisting the ASAP program.
Also, under VA Code 2.1-639.4 subsection (5) expressly
prohibits a state or local employee from "accept[ing] any money,
loan, gift, favor. . ." and under subsection (8):
no officer or employee of a state or local government
or advisory agency shall accept a gift from a person
who has interests that may be substantially affected by
the performance of the officer's or employee's official
duties under circumstances where the timing and nature
of the gift would cause a reasonable person to question
the officer's or employee's impartiality in the matter
affecting the donation.
In view of these factors, the Committee opines that it is
improper under the Code of Professional Responsibility for the
Commonwealth's Attorney's Office to administer the local ASAP
program.
[DRs 4-101(A), 8-101(A)(1), (2), 8-102(4), 9-101(C); ECs 9-1, 9-
2; LEOs 1268, 1682; Va. Code 18.2-271.2(C)(4), 2.1-639.4(5)]
Committee Opinion
February 24, 1998
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