Is it a conflict to handle criminal cases when an employee in your office is the sibling of the chief deputy district attorney?

Plain-English summary

An attorney handling criminal cases employed a chief legal assistant who was studying for the Alabama bar exam and whose brother was the chief deputy district attorney for the same circuit. The attorney, who had received an informal local opinion of no conflict, asked for a formal opinion on whether it was a conflict to handle criminal cases while employing that person, and whether the answer would change once the employee passed the bar and continued in the office.

The Disciplinary Commission concluded it does not constitute a conflict of interest to handle criminal cases while employing the brother of the chief deputy district attorney, and that this is true regardless of whether the employee is a lawyer or a non-lawyer. The opinion explained that Rule 1.8(i) prohibits a lawyer who is related to another lawyer as parent, child, sibling, or spouse from representing a client in a representation directly adverse to a person represented by the related lawyer, but that, as the Comment to the rule indicates, this disqualification is personal and is not imputed to a member or employee of the firm with whom the lawyer is associated.

Currency note

This opinion was issued in 1991, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. The Ethics 2000 revisions in particular reorganized the treatment of related-lawyer conflicts. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is it a conflict to oppose a lawyer whose sibling works in your office?

A: Per the opinion, no. The Commission concluded there was no conflict in handling criminal cases while employing the chief deputy DA's brother, whether or not that employee was a lawyer.

Q: Who does Rule 1.8(i) actually disqualify?

A: The opinion stated Rule 1.8(i) disqualifies only the individual lawyer who is closely related (parent, child, sibling, or spouse) to the opposing lawyer; per the Comment, that disqualification is personal.

Q: Is the related lawyer's disqualification imputed to the rest of the firm?

A: No. The opinion concluded the disqualification is not imputed to a member or employee of the firm with whom the related lawyer is associated.

Background and rules framework

The opinion interprets Rule 1.8 (Model Rule 1.8, specific conflict-of-interest rules), specifically Ala. R. Prof. C. 1.8(i) on lawyers related by blood or marriage, and its Comment treating that disqualification as personal and non-imputed, under the Alabama Rules of Professional Conduct.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Ala. R. Prof. C. 1.8(i) (lawyers related as parent, child, sibling, or spouse; personal, non-imputed disqualification)

See also

• AL Ethics Op. 1991-44: whether a prosecutor's conflict disqualifies the whole office
• AL Ethics Op. 1991-08: a firm may not choose between conflicting present clients
• RI EAP Op. 2003-05: Representing a Client Against His Ex-Wife Is Not a Conflict Just Because Her Sister Is Another Client
• RI EAP Op. 2005-07: Rule 1.8(i) Does Not Cover In-Laws, but Rule 1.7(b) May Still Require Consent When a Sibling Opposes the Client

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1991-40/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-91-40.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-91-40

QUESTION:

"A question has arisen concerning a possible conflict of interest I may have in handling criminal cases. My chief legal assistant, who is currently studying to take the Alabama Bar Exam, has a brother who is also the Chief Deputy District Attorney for this circuit. Although I have received an informal opinion from the local Bar Association that there is no conflict, I wish to receive a formal, written opinion on this matter.

My question is twofold:

(1) Is it a conflict for me to handle criminal cases while having an employee in my office whose brother is Chief Deputy District Attorney in the same circuit; and

(2) would the situation change when this individual passes the Alabama Bar Exam and continues to work in my office?"

ANSWER:

It does not constitute a conflict of interest for you to handle criminal cases while at the same time employing the brother of the Chief Deputy District Attorney in your law office. This would be true regardless of whether your employee is a lawyer or a non-lawyer. Rule 1.8(i) of the Rules of Professional Conduct prohibits a lawyer related to another lawyer as parent, child, sibling or spouse from representing a client in a representation directly adverse to a person represented by the related lawyer. As the comment to this rule indicates, the disqualification is personal and is not imputed to a member or employee of the firm with whom the lawyer is associated.

LGK/vg

10/10/91