Opinion #42. Prosecution of Criminal Cases by Spouse of Member of Firm Defending the Accused (Revision of Opinion #36)
Issued by the Professional Ethics Commission
Date Issued: August 23, 1983
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?
The Grievance Commission has been asked to reconsider Opinion #36 adopted January 17, 1983. In that opinion the Commission held that an Assistant District Attorney could not ethically prosecute criminal cases which were defended by lawyers associated with the law firm in which her husband is a partner. In support of the request for reconsideration, the Commission has been advised that its previous opinion has created a hardship on the District Attorney’s office involved because it is located in a sparsely settled area in which able attorneys available for part‑time employment as assistants are in short supply.
Critical to the conclusion reached in its previous opinion was the Commission’s unquestioning acceptance of the frequently cited rule that the public cannot give its consent to a lawyer‑client relationship in which the attorneys “may be affected by (an) interest of the lawyer.” In the context of the present matter, the inhibition on obtaining consent to the representation operates as an effective bar to the employment because so many of the criminal cases handled in the local District Court are defended by the husband’s law associates. The Commission has concluded that it should reconsider the correctness of its assumption that appropriate government officials as representatives of “the public” could not consent to a representation involving a possible conflict of interest.
As far as the Commission’s research discloses, the notion that the public is disabled from giving its consent to a particular representation on the part of a government attorney appears to have had its genesis in Opinion #16 (1929) of the A.B.A. Committee on Professional Ethics. That opinion involved the question of whether a part‑time prosecutor could undertake a criminal case being defended by one of his law partners. In the course of holding that the representation would be improper, the Committee stated that:
No question of consent can be involved as the public is concerned and it cannot consent.
No authority was cited for this proposition and the opinion contained no further discussion of the Committee’s apparent rejection of the possibility that someone in a position of authority in the government office involved could consent on behalf of the state.
Opinion #16 was subsequently cited with approval in A.B.A. Opinions #34 (1931), #74 (1932) and #296 (1959). In none of these opinions, however, was the conclusion that the public could not give its consent challenged or discussed. Similarly, in N.Y. State Bar Ass’n Opinion #40, it was held that the public could not consent to the prosection of cases by a district attorney whose law associates were representing criminal defendants in the same courts, relying solely on Opinion #16.
Despite its longstanding and apparently unchallenged acceptance by ethics committees, the concept that the public cannot give its consent to a particular course of conduct seems in individual cases to be generally ignored in the day‑to‑day conduct of the government’s legal business. Prosecutors routinely agree to continuances, waive compliance with formalities, and even plea bargain with accused felons in discharging their responsibilities. It is difficult to perceive any persuasive reason why a district attorney or other government officer exercising supervisory responsibility should be disabled from making similar practical judgments about whether or not an assistant district attorney should participate in a particular case because of a possible conflict of interest with a respondent’s counsel.
It is interesting to note that the A.B.A. itself has provided some precedent for permitting such practical judgments to be made in conflict of interest cases. In Opinion #342 (1977), it was held that a private law firm which had been joined by a former government lawyer could nevertheless undertake cases in which he had been substantially involved if he were screened from contact with the matter “to the satisfaction of the government agency concerned . . .” Strangely enough, the opinion made no mention of the rule forbidding consent by the public.
A similar result was reached by the Maine Court in 1983 in adopting an amendment to Rule 3.4(k). Subsection (1) of that rule now permits a private law firm to undertake a matter in which a member of the firm had substantial responsibility during former employment with the government if the written consent of “the appropriate governmental officer or agency is obtained.”
Finding no legal basis for the rule generally disabling responsible government officials from consenting to an employment relationship when it is determined that a potential conflict of interest will not adversely affect the judgment of the government lawyer involved, the Commission concludes that Opinion #36 should be amended to permit the assistant district attorney in question to represent the state in cases defended by her husband’s law firm provided the informed written consent of the District Attorney or the Attorney General is first obtained.
Although Rule 3.4(f) does not appear to limit the scope of the client’s right to consent, Rule 3.4(b) forbidding the acceptance of employment if a lawyer’s independent professional judgment will be, or is likely to be, adversely affected, would appear to permit the assistant district attorney in question to act only in cases in which she would receive no pecuniary benefit from the representation as a result of the participation by her husband’s law firm. This could be accomplished by the segregation of fees in such cases within the firm. For the reasons set forth in our previous opinion and in Opinion #3 (1979), we also assume that it is unlikely that the requirements of Rule 3.4(b) could be met in any case in which the assistant district attorney’s husband were to personally undertake the defense of a case which she was prosecuting.
For the reasons given, it is the Commission’s opinion that an assistant district attorney may undertake criminal cases defended by her husband’s law firm with the informed written consent of the District Attorney or the Attorney General and provided the requirements of Rule 3.4(b) are observed.
 Equally unhelpful are Arizona Bar Ass’n opinion #82‑15 (1982) and Re A. & B., 44 N.J. 331, 209 A.2d 101 both of which conclude without discussion that the public cannot give its consent to a representation involving a potential conflict of interest. See also Drinker, Legal Ethics 120 (1953).