Can a prosecutor try cases against criminal defendants who are represented by the prosecutor's sibling?

Plain-English summary

A newly admitted Assistant District Attorney asked whether it would be a conflict of interest to prosecute cases in which the defendant's counsel was the prosecutor's older brother, given that the heavy caseload made it inevitable that the two would sometimes be on opposite sides.

The Disciplinary Commission concluded that the prosecutor may represent the State in criminal cases defended by the brother only if both the District Attorney's Office and the brother's client or clients give informed consent to the representation. It grounded the answer in Rule 1.8(i), which provides that a lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person the lawyer knows is represented by the other lawyer, except upon consent by the client after consultation regarding the relationship.

The opinion emphasized that the consent of the brother's clients must follow consultation about the relationship, and that the brother should make a concerted effort to ensure his clients understand his relationship to the prosecutor and its possible implications for their defense. The opinion added that, because the circumstances are so fraught with the potential for conflict, the Commission recommended that every effort be made to avoid the situation and that, where possible, another member of the District Attorney's staff prosecute cases defended by the brother.

Currency note

This opinion was issued in 1995, 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 ABA later deleted the related-lawyers provision (former Model Rule 1.8(i)) and moved its substance to a comment under Rule 1.7. 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 Treat this page as historical context, not current guidance.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: Can a prosecutor try a case against a defendant represented by the prosecutor's sibling?

A: The opinion concluded the prosecutor may do so only if both the District Attorney's Office and the sibling's client give informed consent to the representation.

Q: Whose consent is required, and how is it obtained?

A: The opinion concluded the District Attorney's Office and the brother's clients must consent, and that the clients' consent may be obtained only after consultation regarding the relationship, which the brother should make a concerted effort to explain.

Q: Did the opinion recommend prosecuting these cases at all?

A: No. The opinion recommended that, because the situation is fraught with potential conflict, every effort be made to avoid it and, where possible, another member of the DA's staff prosecute cases defended by the brother.

Background and rules framework

The opinion interprets Rule 1.8(i) of the Alabama Rules of Professional Conduct (then-current Model Rule 1.8(i)), which addressed representation directly adverse to a person known to be represented by a closely related lawyer. The rule's exception required consent by the affected client after consultation about the relationship, and the opinion applied that requirement to both the prosecuting office and the defendants represented by the prosecutor's brother.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Ala. R. Prof. C. 1.8(i) (representation adverse to a client of a closely related lawyer; consent after consultation)

See also

• AL Ethics Op. 1995-07: Lawyer May Not Represent Criminal Defendant Where Sole Eyewitness Is a Client
• AL Ethics Op. 1996-06: Hiring an Adversary Firm

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1995-10/
• Original PDF: https://www.alabar.org/assets/2019/02/1995-10-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Party names were redacted in the source and may appear garbled; minor errors may remain. The linked PDF is authoritative.

ETHICS OPINION

RO-95-10

QUESTION:

"I have recently passed the July 1995 bar exam and have taken a position as an Assistant District Attorney in [redacted] County Alabama. My older brother, [redacted], who is also an attorney, does a lot of criminal defense work in the circuit in which I am a prosecutor. Due to the heavy caseload and number of cases that come through the District Attorney's office it is inevitable that at sometime or another we would be on opposite sides of the same case. For this reason I would like to make a request for a formal opinion.

My question is: Is there a conflict of interest, an ethical issue or any violation of the rules of professional responsibility for me as a prosecutor to try a case or negotiate a plea agreement at the juvenile, district, or circuit level when counsel for the defendant is the prosecutor's sibling?"

ANSWER:

You may represent the State as prosecutor in criminal cases defended by your brother only if both the District Attorney's Office and your brother's client(s) give their informed consent to such representation.

DISCUSSION:

Rule 1.8(i) of the Rules of Professional Conduct provides as follows:

"Rule 1.8 Conflict of Interest
Prohibited Transactions

(i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."

Pursuant to the above-quoted rule, you may not prosecute cases in which your brother is defense counsel unless all the parties to the proceeding give their informed consent. Please note that the consent, particularly the consent of your brother's clients, may be obtained only "after consultation regarding the relationship". Therefore, your brother should make a concerted effort to ensure that his clients fully understand his relationship to you and the implications or ramifications this relationship may have for the clients' effective defense. If such consent is obtained, the Rules of Professional Conduct allow you to prosecute cases defended by your brother. However, because these circumstances are so fraught with the potential for conflict, it is the recommendation of the Disciplinary Commission that every effort should be made to avoid placing yourself in this situation. Where at all possible it would be preferable for another member of the District Attorney's staff to prosecute cases defended by your brother.

LGK/vf

11/28/95