Opinion #70. Representation of Criminal Respondent by Spouse of Assistant District Attorney

Issued by the Professional Ethics Commission

Date Issued: May 7, 1986

Question

An attorney who proposes to handle criminal defense cases has requested an advisory opinion on the following question: May a criminal defense counsel, whose spouse is a member of the District Attorney’s Office, defend matters handled by the District Attorney’s Office, as long as the spouse is not involved in any way with the prosecution, and the attorney’s client consents to the arrangement? That is, in such a situation, is the consent of the District Attorney required?

Opinion

Rules 3.4(a), 3.4(b) and 3.4(f) of the Bar Rules are directly applicable to this inquiry:

(a) Disclosure of Interest. Before accepting any professional employment a lawyer shall disclose to the prospective client his relationship, if any, with the adverse party; his interest, if any, in the subject matter of the employment; all the circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that a lawyer knows or reasonably should know would influence the client in the selection of a lawyer.

(b) Conflict of Interest. A lawyer shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests, except to the extent such employment is permitted by subdivision (d) of this rule.

(c) 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.

It is obvious that these rules govern the relationship between the defense attorney and his prospective client. None of these rules requires consent from the opposing party. Thus, on the facts given, assuming full and accurate disclosure and informed written consent by the client, the defense attorney may accept the case regardless of whether the District Attorney consents.

This situation is somewhat the reverse of the facts discussed in the Grievance Commission’s Advisory Opinion No. 42, issued in 1983. The holding in that opinion was that the involvement of an Assistant District Attorney in a prosecution which was defended by a member of her husband’s law firm required consent from the District Attorney or the Attorney General. For the purpose of deciding the Assistant District Attorney’s ethical duties her “client” is the State. Opinion No. 42 concluded that the consent of this client was needed under 3.4(f), but that either the District Attorney or Attorney General was competent to grant this consent on behalf of the State. That conclusion, however, has little bearing on the ethical duties of defense counsel in the present situation since he has a different client to whom he is responsible.


Enduring Ethics Opinion