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Did Cuccinelli break a rule in his Fairfax appearance after all?

An article in Monday's Washington Post reported that newly sworn Attorney General Ken Cuccinelli II tried a case in Fairfax juvenile and domestic relations court last week, which "did not violate any state laws or rules."

But some astute readers have pointed out that that might not be true. The rules of professional conduct of the Virginia State Bar appear to specifically prohibit such work by a government lawyer.


Cuccinelli, who had a general law practice in Centreville before his recent election, returned to the Fairfax courthouse last Tuesday for an apparently sensitive domestic relations case, his chief deputy, Chuck James, said Friday. He said Cuccinelli was handling the case on behalf of a client who hired him long before the election, that he was not paid for his work in the previously scheduled hearing, and that it served to wrap up his private practice.

James said the issue had been thoroughly researched, and "I believe the rule is, an attorney in state employment can appear and represent a client in private practice but cannot accept monies," James said.

James said Cuccinelli had previously been paid a retainer but was not paid for his appearance Tuesday. "You try not to leave any client stranded," James said, "particularly when you're dealing with sensitive issues."

A variety of lawyers queried by The Post said the attorney general's actions might have seemed odd, perhaps improper according to one legal scholar, but not illegal.

But readers pointed out that the Virginia State Bar's Rules of Professional Conduct have a whole section on "Special Conflicts Of Interest For Former And Current Government Officers And Employees."

It's Rule 1.11. And in section (d), the rule states: "Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter."

A matter is defined as "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties."

There is no indication that anyone has filed a complaint with the state bar about Cuccinelli's actions.

James said that the issue "was fully vetted" both by the previous state attorney general "and our administration." He said Cuccinelli had "a prior existing relationship with a client" who wanted Cuccinelli to handle a sensitive matter involving children.

"We're comfortable with the decision," James said.

James also noted that "this issue was raised" in the hearing before Fairfax Juvenile and Domestic Relations Court Judge Gayle B. Carr, and "the judge saw no reason to have Mr. Cuccinelli taken off the case. And the judge was uniquely situated to know the facts and circumstances surrounding this particular client," which James noted are confidential under juvenile and domestic relations court rules.

-- Tom Jackman


By Tom Jackman  |  February 2, 2010; 11:29 AM ET
Categories:  Fairfax , From the Courthouse , Politics , Tom Jackman , Updates , Virginia  
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Comments

Tom, Rule 1.11(d) is not applicable here. That rule is meant to prohibit a lawyer from appearing on *the other side* of a case after he or she has assumed public office. Thus, if Cuccinelli's client had been in a legal dispute with the commonwealth of Virginia, Cuccinelli could not then participate in that dispute on behalf of the commonwealth (and against his former client) once he'd assumed office.

Indeed, he probably couldn't participate on either side, because if he kept representing his private client, he'd be acting adversely to his current client, the commonwealth. Presumably, in Cuccinelli's actual case, his client was in a dispute between private individuals, where the commonwealth was not a party.

The Rule is meant to protect the client against the lawyer jumping to the other side and using the client's information against her. In itself, it's not meant to prohibit an existing representation from continuing.

I'm a lawyer at the Department of Justice, and I can represent private parties in certain private dispuates, as long as the government isn't an opposing party, and provided I get prior approvals. It looks unusual because he is Attorney General and not just an ordinary government lawyer, but there's nothing impermissible about what Cuccinelli did.

Posted by: tomtildrum | February 2, 2010 12:21 PM | Report abuse


This is EXCELLENT REPORTING, Mr. Jackman.

Tom Tildrum is on a bit of a high horse because the issues are so complex as to be worthy of a court of law or an ethics commission.

The proper procedure, regardless of the exact wording of the laws, would have been for Cuccinelli to seek and OBTAIN an advisory opinion from the ethics commission BEFORE participating in the proceedings.

That, in itself, would be most unusual because it is the ATTORNEY GENERAL, Cuccinelli himself, who would normally have the final say in such a matter when time is of the essence.

This is a perfect example of how laws are sometimes entirely INADEQUATE and how, nevertheless, people of CHARACTER, ladies and gentlemen can demonstrate statesmanship, leadership and accountability by asking their colleagues for a written advisory opinion in advance.

For that reason, Cuccinelli finds himself in a conflict of interest unworthy of an Attorney General.

It takes more than riding paragraphs to stay in the saddle of a high horse !!!!


Posted by: properbostonian1 | February 2, 2010 1:48 PM | Report abuse

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Hey properbostonian1,

I am not a lawyer, but it seems to me that in reading Jackman's blog that Cuccinelli could not hand off the final family court appearance to another lawyer without his client's permission, which according to the article was not going to happen. Don't know whether 1.11(d) is a rule or a law, or whether that makes a difference, but it appears to me that Cuccunelli did not violate it.

I conclude that Cuccinelli's pro bono appearance is simply a good deed that must not go unpunished.

I suspect that you, Proper Bostonian, along with Jon Gould at GMU, are self-appointed bloviators set on chinking Cuccinelli's armour solely because of his party affiliation. Good luck with that.



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Posted by: WillieH | February 2, 2010 3:36 PM | Report abuse

The post by Willie H says it quite clearly, and makes a point most non-lawyers have trouble understanding. As an attorney I may not resign from representing a client without the consent of that client.

Cucinelli did exactly what he had to do when the client would not release him, and did not get paid for his efforts.

Time to quit complaining about a lawyer doing his job.

Posted by: WalkingTom | February 2, 2010 4:57 PM | Report abuse

Hey properbostonian1,

I am not a lawyer, but it seems to me that in reading Jackman's blog that Cuccinelli could not hand off the final family court appearance to another lawyer without his client's permission, which according to the article was not going to happen. Don't know whether 1.11(d) is a rule or a law, or whether that makes a difference, but it appears to me that Cuccunelli did not violate it.

I conclude that Cuccinelli's pro bono appearance is simply a good deed that must not go unpunished.

I suspect that you, Proper Bostonian, along with Jon Gould at GMU, are self-appointed bloviators set on chinking Cuccinelli's armour solely because of his party affiliation. Good luck with that.

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Posted by: WillieH | February 2, 2010 3:36 PM | Report abuse
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It doesn't make a difference whether it's a rule or a law in the way that you may be inferring. The Virginia Supreme Court (and the Virginia Supreme Court ONLY) makes the rules for what lawyers can and cannot do. So, for lawyers, what they say is the law that governs the profession in Virginia. Lawyers are one of the few, if not the only, self-regulating professions in the country. Lawyers are discplined by other lawyers and are subject to the rules of the courts they are admitted to practice before. In this case, the Attorney General's law license is a result of being admitted before the Virginia Supreme Court.

Posted by: nsu1203 | February 2, 2010 5:00 PM | Report abuse

tomtildrum, WillieH, WalkingTom:

All three of you are full of crap — and I've supported Ken for many years and had the privilege to vote for him this past November.

Rule 1.11(d)(1) obviously applies here as there are other Ethics Rules which would bar an attorney from trying two sides of a case.

Ken wasn't representing the Commonwealth in JDR last week, he was representing a private client. A client couldn't "make" Ken violate the Rules of Professional Conduct as one or more of you have alleged.

The fact is, Ken became the state's attorney when he was sworn in last month. Rule 1.11(d)(1) applies specifically to those attorneys elected or appointed to positions where they represent the Commonwealth.

The Rule isn't that hard to read, and if we had to "go with" your interpretation, Ken would have had no reason to "wind down" his law practice upon being elected.

Perhaps you might wish to download and re-read the rules...and please keep in mind, just because his Chief Deputy said it was OK and a Judge had no problem with it, doesn't mean it didn't violate ethics rules...

If we had attorneys and judges who never made judgment errors with respect for the law, there would be absolutely no need for appellate courts, would there.

In fact, I believe that any attorney who witnessed Ken's appearance before the JDR Court last week had an ethics obligation to report him to the Virginia State Bar. What we're witnessing (as Virginia Lawyer's Weekly has also ignored this) is lawyers covering for fellow lawyers.

Posted by: davebriggman | February 2, 2010 5:41 PM | Report abuse

I wouldn't vote for Cuccinelli at gunpoint, but this seems to me to be much ado about not much. At best, a technical yet harmless violation of a Bar rule. So go ahead and file an ethics complaint - what are they going to do, tell him not to do it again? I'm pretty sure that's already crossed his mind. Let's just try to keep him from running amok for the next four years, and then send him back to private practice. Please.

Posted by: A_Reader | February 2, 2010 9:59 PM | Report abuse

"if we had to 'go with' your interpretation, Ken would have had no reason to 'wind down' his law practice upon being elected."

Correct. The Rules of Professional Conduct do not forbid a lawyer from representing multiple clients, as long as their interests are not in conflict. Indeed, they expressly acknowledge that that will happen. The Commonwealth, however, has imposed its own additional rules restricting the ability of its attorneys to take on private representation, because of the uniquely pervasive conflict risks. There seems to be consensus that those rules were not violated.

Again, Tom Jackman, call the DOJ press room, and they'll explain how this sort of thing is entirely common.

Posted by: tomtildrum | February 2, 2010 11:26 PM | Report abuse

If this rule applies to Cuccinelli's appearance in the JDR court last week, it would have applied no less *before* he became attorney general. A member of the state senate is also a person "serving as a public officer or employee." No one suggests that a legislator may not engage in the private practice of law, but that would be the result of the interpretation being urged on us now.

Posted by: entonces_99 | February 3, 2010 9:57 AM | Report abuse

@tomtildrum, I would think that the National Association of Attorneys General would likely more about the laws relating to the Attorneys General across our union that the Department of Justice Press Room.

@entonces_99, I don't believe a member of the legislature constitutes a "public officer", certainly not in the context of the ethics rule numbered 1.11(d)(1).

That having been said, I have grave concerns about the "master" that attorney legislators serve while in the General Assembly. Under Virginia law, attorneys can't practice law unless they're members of the Virginia State Bar — an Agency of the Judicial Branch of government. Even more concerning are those members of the General Assembly who are also prosecutors, like Todd Gilbert and Ben Cline...these three guys have roles in all three branches of government.

Obviously, to me, it's a potential conflict of interest for any attorney to be crafting and voting on legislation which affects their livelihood. All one has to do is look at Dave Albo who at the same time he was trying to expand his lawfirm's presence throughout Virginia, introduced, lobbied for, and ultimately had passed the "abusive driver fees" which would have brought in lots of revenues to him and ti his fellow bar card buddies.

Posted by: davebriggman | February 3, 2010 4:17 PM | Report abuse

The person Ken appointed to be his 2nd hand in the AG's office, was the attorney in Page County Sheriff Presgrave's Federal Racketeering case. Presgraves was found guilty and sentenced under RICO (exactly what I discuss in my youtube re:Gov Kaine & AG Bob McDonnell (now Gov).The Virginia Attorney General's "office" (representing individual state defendants) has a major conflict of interest in permitting representation on behalf of any private persons, because the funding is controlled by the AGs office; their salaries & pensions are linked directly or indirectly to the JDR courts system. "One thing the Attorney General and the other attorneys on our staff cannot do is give legal advice to private citizens. If you have a private dispute, this Office cannot intervene. If you would like more information regarding finding an attorney for a private legal matter, please click here." from the AG's own website. I was one of Ken's DELEGATES. He's opened PANDORA'S BOX. If you do not "see" what is going on -you do not comprehend the magnitude of the threat."The Office of the Attorney General (OAG) is the Commonwealth's law firm...Its clients are the Virginia state government and the state agencies, boards and commissions that compose that government."

Posted by: marshamaines | February 6, 2010 7:35 PM | Report abuse

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