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

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

Today on the Crime Scene blog, Jackman writes more about the subject...

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.

By Anita Kumar  |  February 2, 2010; 12:03 PM ET
Categories:  Ken Cuccinelli  
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This Virginia State Bar rule clearly states it applies to someone "serving as a public officer or employee." Cuccinelli was not acting or serving in this capacity when he appeared in court.

The rule is clearly aimed at barring an attorney in the government seeking to be involved in the case AS A GOVERNMENT ATTORNEY where he or she was involved as a private attorney. I.e., an attorney who worked as corporate counsel for a company can not oversee their legal business with the state as a state employee.

As AG Cuccinelli was NOT ACTING AS A GOVERNMENT ATTORNEY and there is no conflict of interest as the matter was not one currently before or ever expected to be before the AG's office, there is no way that it applies.

Posted by: fatherofthree | February 2, 2010 4:38 PM | Report abuse


While Ken wasn't appearing as the Attorney General of Virginia, I'm unaware of any time during his term when he could reasonably be construed to be anything except the Attorney General of Virginia.

There are already ethics rules that would keep an attorney from trying both sides of a case, Rule 1.11(d)(1) clearly keeps the state's attorneys general from engaging in private practice.

It's only logical and makes common sense, I mean who would you rather have representing you in a court action, an attorney who is THE Attorney General of Virginia, or joe-blow general practitioner.

And I don't know how much as a "father of three" you study the Office of the Attorney General, but they have some of the least competent attorneys engaged in the practice of law in Virginia.

Posted by: davebriggman | February 2, 2010 5:06 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 7:31 PM | Report abuse

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