Opinion #65. Defense of Criminal Cases by Attorney Whose Spouse Is Related to District Attorney

Issued by the Professional Ethics Commission

Date Issued: December 4, 1985

Question

What limitations do the Maine Bar Rules impose on the representation of criminal defendants by an attorney whose spouse is a sibling of the local District Attorney?

Opinion

We assume that the District Attorney has a staff of one or more assistants who take responsibility for part of the office caseload and could be responsible for any cases in which the related attorney is defense counsel.

The question is controlled by Rules 3.4(f) and 3.4(a) of the Maine Bar Rules. Rule 3.4(f) provides:

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.

Rule 3.4(a) requires disclosure of all such interests of the lawyer. Depending on the circumstances, the relationship of the brother or sister‑in‑law is potentially just such an “interest of the lawyer.”[1]

In Opinion No. 3, the Grievance Commission considered several hypothetical cases involving related lawyers. In discussing the applicability of Rule 3.4(f), the opinion concluded that regardless of the relationship between the two attorneys involved, including the relationship of in‑laws, if the two attorneys opposed one another directly in a litigated matter there was a sufficient likelihood that their “interest” might affect the exercise of the professional judgment of one or the other of them so that both should obtain the informed written consent of their clients. The opinion also concluded that when the related attorneys were in‑laws and one was opposed, not by the other related attorney, but by the other attorney’s “firm,” there was only a remote possibility that Rule 3.4(f) would apply. Consequently, in that case we concluded that informed written consent of the clients would not be necessary, but might be desirable.

Opinion 3 did not discuss the applicability of the vicarious disqualifications required by Rule 3.4(k) to such a situation. According to the Reporter’s Notes, Rule 3.4(k) does not apply to common employment in a government agency and therefore need not be considered in this opinion. Opinion 3 thus appears to permit an attorney to represent criminal defendants in the jurisdiction for which an in‑law is District Attorney, provided the District Attorney does not actively participate in any case the in‑law is defending. If the in‑law District Attorney does participate, the opinion suggests that written client consent on both sides may be required.

Ordinarily, the applicability of Rule 3.4(f) must be determined primarily by the attorney involved. Presumably the attorney is in the best position to determine whether “any interest” will or reasonably may affect the exercise of his professional judgment on behalf of a client. Some interests may, however, make such an effect so likely as to make any contrary conclusion unreasonable. For example, in Peaslee v. Pedco, Inc., 388 A.2d 103 (Me. 1978), an attorney representing sellers of real estate was a shareholder of the purchasing corporation, as well as its attorney. In an opinion delivered before adoption of Bar Rule 3, the Court held that the sellers could rescind because the attorney’s personal interest had not been disclosed. In dicta the opinion suggested proper disclosures might have cured the defect.

In Opinion 36, the Grievance Commission found that an Assistant District Attorney whose spouse was a member of a firm that represented a number of criminal defendants in the Assistant’s jurisdiction had an interest overwhelmingly likely to affect professional judgment. The opinion reasoned that consent from the State was unobtainable and therefore concluded that the assistant and a member of the spouse’s firm could not represent opposing sides of the same criminal case. In Opinion 42 the Grievance Commission modified this conclusion by holding that the consent of the State to representation despite a vicarious spousal conflict could be given either through the District Attorney or the Attorney General.

An in‑law relationship does not necessarily have any of the characteristics of intimacy and certainly does not have the legal protection relied upon by the Commission in finding that Rule 3.4(f) would necessarily be implicated if an attorney and the law firm of the attorney’s spouse were on opposite sides. There is no reason to assume any tie between attorneys related as inlaws, other than acquaintance.

The attorney who proposes to undertake a criminal defense will be subject to the disclosure requirement of Rule 3.4(a) whether or not Rule 3.4(f) applies to the case. The disclosure requirement does not depend upon the attorney’s judgment whether a relationship with the District Attorney may affect the exercise of the defense attorney’s professional judgment. Disclosure is required if there is any relationship with the adverse party or if the attorney has “any interest or connection with the matter at hand that could influence the client in the selection of a lawyer.” It is evident that being related to the District Attorney as an in‑law falls into this category. Accordingly, disclosure should be made in all such cases.

The disclosure requirement necessarily will apply differently to the District Attorney. It may be advisable to notify the Attorney General, at least, of the possibility that the in‑law will be defense counsel and give that official an opportunity to provide a substitute prosecutor. We do not believe notice is required if the District Attorney does not intend to become personally involved in a case. As suggested in Opinion 42, the Attorney General presumably could give any client consent required for the District Attorney to undertake or continue an active role in a case in which the in‑law is defense counsel.

To summarize, an attorney who has an in‑law relationship with the local District Attorney may represent defendants in cases prosecuted by that District Attorney’s office, whether or not the District Attorney is involved personally. The defense attorney must disclose the relationship to each prospective client‑defendant before representation commences. If the District Attorney becomes personally involved in the case, and if the defense attorney concludes that such personal involvement creates an interest that may affect the exercise of professional judgment, the informed written consent of the client‑defendant must be obtained. If the District Attorney concludes that representation of the defendant by an in‑law may affect the exercise of his professional judgment in any given case (either because of the District Attorney’s personal involvement in the case or otherwise) the informed written consent of the Attorney General must be obtained.


Footnote

[1] Rule 3.4(b), which on occasion has been cited in response to questions involving consanguinity, is not pertinent. The conflicts of interest covered by Rule 3.4(b), and related rules 3.4(c) and (d), are conflicts between the interests of different clients and prospective clients of the same lawyer or law firm. It is not the interests of the clients but of the lawyers that raise the question presented by this request.


Enduring Ethics Opinion