Opinion #36. Litigation of Criminal Cases by Law Firm of Assistant District Attorney's Husband

Issued by the Professional Ethics Commission

Date Issued: January 17, 1983

Question

Do the Maine Bar Rules forbid an Assistant District Attorney from prosecuting a criminal case against a person who is represented by a lawyer whose partner is the spouse of the Assistant District Attorney?

Opinion

The question presented is answered in the affirmative: the Maine Bar Rules forbid an Assistant District Attorney from prosecuting a criminal case against a person who is represented by a lawyer whose partner is the spouse of the Assistant District Attorney. This prohibition applies even if the law firm were to make an arrangement by which the Assistant District Attorney’s spouse would not share in any legal fees earned as the result of criminal defense work in which the Assistant District Attorney was the prosecuting attorney.

In Formal Opinion No. 79‑3, issued on October 17, 1979, the Grievance Commission dealt with a somewhat similar situation in the context of civil litigation. There, citing Rule 3.4(f),[1] the Commission decided that “the preferred practice” would be for a lawyer to obtain the client’s informed written consent to representation in civil litigation against a person represented by a law firm, in which the lawyer’s spouse is a partner.

In the context of criminal litigation, however, the State of Maine is the “client” of the Assistant District Attorney, and it is not possible for the State to give its “informed written consent” to such representation. Accordingly, in this situation it is necessary to address directly the question of the application of Rule 3.4(f) to the circumstances involved.

In construing Rule 3.4(f) the Commission must bear in mind the fundamental importance of the avoidance of any appearance of impropriety in the prosecution of criminal cases. The Commission must also take into consideration the intimacy of the marital relationship which is respected and protected by law. See M. R. Evid. 504 (Husband‑Wife Privilege); State v. Smith, 384 A.2d 687, 691 (Me. 1978) (holding that all marital communications are presumed to be confidential).

Given these considerations, the Commission concludes that in the situation presented the prosecutor’s professional judgment in the prosecution of a criminal case “may reasonably be affected” by the fact that the prosecutor is the spouse of a lawyer who is the defense counsel’s partner. While it might be argued that the particular circumstances which would require disqualification in this type of situation could be determined in a case by case basis, the Commission believe that such ad hoc determinations would be neither feasible nor in the public interest. Accordingly, the Commission construes Rule 3.4(f) broadly to prohibit an Assistant District Attorney from prosecuting a criminal case against a person represented by a lawyer whose partner is the spouse of the Assistant District Attorney.


Footnote

[1] Rule 3.4(f) provides:

(f) Interest of Lawyer. Except with the informed written consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be, or reasonably may be, affected by any interest of the lawyer.


Enduring Ethics Opinion