Could a probation officer and an assistant prosecutor who are spouses work in the same county without case-related professional contact?
Apply this to your situation
This page answers the general question as of 2006. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A court asked whether the marriage of a probation officer and assistant prosecuting attorney created a conflict, including when the officer might testify or make sentencing recommendations in cases handled by the prosecutor.
The Commission identified a clear conflict if the spouses had professional contact on a case. It pointed to conditions approved in another circuit that kept the prosecutor from case-related contact with the spouse concerning people assigned to the officer. The Commission said analogous conditions might overcome the conflict and also urged care to avoid a false public impression of case contact.
In practice
The opinion’s proposed solution required no professional contact between the spouses on relevant cases and attention to the public appearance of whether they had such contact.
Common questions
Q: Would case-related professional contact between the spouses present a conflict?
A: Yes. The Commission described it as a clear conflict.
Q: Could the conflict potentially be overcome?
A: The Commission said it may be overcome if conditions like those in another circuit prevent case-related professional contact.
Q: Did the opinion address appearances to the public?
A: Yes. It called for care to avoid a false impression that the spouses had professional contact on cases.
Background and rules framework
The letter cites no numbered provision of the West Virginia Code of Judicial Conduct. It relied on a comparable court employment arrangement approved by the Supreme Court of Appeals Administrative Office with a no-professional-contact condition.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2006-07, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 * FAX (304) 558-0831
June 6, 2006
Re: JIC Advisory Opinion 2006-07
Dear
In a recent letter to Counsel to the Judicial Investigation Commission you asked for an advisory opinion. In that letter you stated that you were asking the opinion of the Commission on an issue that has developed in County. Specifically, one of your probation officers recently married an assistant prosecuting attorney and you are concerned this might have created a conflict of interest. Presently the assistant prosecuting attorney is assigned to magistrate court so the contact with the probation officer is limited to preliminary probation revocation proceedings. However, during the course of these hearings the probation officer may be called as a witness and subsequently questioned by his/her spouse. Moreover, you asked what if, at some future time the assistant prosecuting attorney is assigned to the circuit court where the spouse probation officer is not only participating in revocation, but also providing impartial sentencing recommendations as part of the pre-sentence investigation report.
June 6, 2006,
Page Two
In reviewing the inquiry which you have made, the Commission has discovered the employment of a probation officer who is married to an assistant prosecuting attorney in another county circuit. The terms of that employment were approved by the Administrative Office of the Supreme Court of Appeals based upon the condition that the probation officer and her husband who was an assistant prosecuting attorney would have no professional contact as it would relate to the assistant prosecuting attorney representing the state in any action against any person assigned to the probation officer at a pre-supervision or supervision status. While the situation you describe in your county does present some inherent dangers because there would be a clear conflict of interest if the assistant prosecuting attorney and his/her spouse probation officer had any contact on any case, that conflict may be overcome if the conditions imposed in the other circuit are imposed in your county. Care should also be taken to assure that the public does not get the false sense that the probation officer and the assistant prosecuting attorney are having professional contact in any cases.
It is hoped this opinion fully addresses the question which you have raised. If there any further question regarding this matter, do not hesitate to contact the
Commission.
Very truly yours,
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF,II:nb
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