Can an assistant district attorney prosecute a criminal case when the defendant is represented by a lawyer whose law partner is the prosecutor's spouse?

Plain-English summary

The Commission was asked whether the Maine Bar Rules forbid an assistant district attorney from prosecuting a criminal case against a person represented by a lawyer whose partner is the assistant district attorney's spouse. The Commission answered yes, and added that the prohibition applies even if the law firm arranged that the prosecutor's spouse would not share in any fees earned on criminal defense work in which the assistant district attorney was the prosecutor.

The Commission drew on Formal Opinion No. 79-3 (Oct. 17, 1979), where, in the civil context, it had said the "preferred practice" under Rule 3.4(f) was for a lawyer to obtain the client's informed written consent before representing a client in litigation against a person represented by a firm in which the lawyer's spouse is a partner. In the criminal context, however, the State of Maine is the "client" of the assistant district attorney, and the State cannot give informed written consent to such a representation. That left the Commission to apply Rule 3.4(f) directly.

In construing Rule 3.4(f), the Commission emphasized the fundamental importance of avoiding any appearance of impropriety in criminal prosecutions, and the intimacy of the marital relationship, which the law respects and protects (citing M.R. Evid. 504, the husband-wife privilege, and State v. Smith, 384 A.2d 687, 691 (Me. 1978), that marital communications are presumed confidential). The Commission concluded that, in this situation, the prosecutor's professional judgment "may reasonably be affected" by the fact that the prosecutor is the spouse of a partner of the defense counsel. Rather than leave disqualification to case-by-case determinations, which it found neither feasible nor in the public interest, the Commission construed Rule 3.4(f) broadly to bar the prosecution.

Currency note

This opinion was issued in 1983, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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 an assistant DA prosecute a case where the defense lawyer is the prosecutor's spouse's partner?

A: The opinion concluded no. The Commission read Rule 3.4(f) to bar the prosecution because the prosecutor's judgment may reasonably be affected by the spouse's partnership with defense counsel.

Q: Could the firm fix the problem by walling off the spouse from the fees?

A: No. The opinion stated the prohibition applies even if the firm arranged that the prosecutor's spouse would not share in fees from that defense work.

Q: Why couldn't consent cure the conflict, as it might in a civil case?

A: The opinion explained that the prosecutor's client is the State, which cannot give the informed written consent Rule 3.4(f) contemplates, so the consent route used in civil matters (per Formal Op. 79-3) was unavailable.

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(f), which barred a lawyer, absent the client's informed written consent after full disclosure, from accepting employment where the exercise of professional judgment on the client's behalf will be, or reasonably may be, affected by any interest of the lawyer. That provision corresponds to Model Rule 1.7 (conflicts of interest, including a lawyer's personal interests and those arising from close family relationships). The analysis turns on the prosecutor's inability to obtain the State's consent and the strong interest in avoiding any appearance of impropriety in criminal prosecutions.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest)
• Maine Bar Rule 3.4(f) (interest of lawyer)

Evidence rules:

• Maine Rule of Evidence 504 (husband-wife privilege)

Cases:

• State v. Smith, 384 A.2d 687, 691 (Me. 1978): marital communications are presumed confidential

Other opinions cited:

• Maine Grievance Commission Formal Opinion No. 79-3 (Oct. 17, 1979): spouse-partner conflict in civil litigation

See also

• Maine Ethics Op. 42: Prosecution by Spouse of a Firm Member
• Maine Ethics Op. 39: A Part-Time Assistant D.A.'s Firm and Criminal Defense
• Maine Ethics Op. 49: Part-Time D.A.'s Private Clients
• Maine Ethics Op. 65: Defense by Attorney Whose Spouse Is Related to the Prosecutor

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89663

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: January 17, 1983

Question

Do the Maine Bar Rules forbid an Assistant District Attorney from prosecuting a criminal case against a person who is represented by a lawyer whose partner is the spouse of the Assistant District Attorney?

Opinion

The question presented is answered in the affirmative: the Maine Bar Rules forbid an Assistant District Attorney from prosecuting a criminal case against a person who is represented by a lawyer whose partner is the spouse of the Assistant District Attorney. This prohibition applies even if the law firm were to make an arrangement by which the Assistant District Attorney's spouse would not share in any legal fees earned as the result of criminal defense work in which the Assistant District Attorney was the prosecuting attorney.

In Formal Opinion No. 79-3, issued on October 17, 1979, the Grievance Commission dealt with a somewhat similar situation in the context of civil litigation. There, citing Rule 3.4(f),[1] the Commission decided that "the preferred practice" would be for a lawyer to obtain the client's informed written consent to representation in civil litigation against a person represented by a law firm, in which the lawyer's spouse is a partner.

In the context of criminal litigation, however, the State of Maine is the "client" of the Assistant District Attorney, and it is not possible for the State to give its "informed written consent" to such representation. Accordingly, in this situation it is necessary to address directly the question of the application of Rule 3.4(f) to the circumstances involved.

In construing Rule 3.4(f) the Commission must bear in mind the fundamental importance of the avoidance of any appearance of impropriety in the prosecution of criminal cases. The Commission must also take into consideration the intimacy of the marital relationship which is respected and protected by law. See M. R. Evid. 504 (Husband-Wife Privilege); State v. Smith, 384 A.2d 687, 691 (Me. 1978) (holding that all marital communications are presumed to be confidential).

Given these considerations, the Commission concludes that in the situation presented the prosecutor's professional judgment in the prosecution of a criminal case "may reasonably be affected" by the fact that the prosecutor is the spouse of a lawyer who is the defense counsel's partner. While it might be argued that the particular circumstances which would require disqualification in this type of situation could be determined in a case by case basis, the Commission believe that such ad hoc determinations would be neither feasible nor in the public interest. Accordingly, the Commission construes Rule 3.4(f) broadly to prohibit an Assistant District Attorney from prosecuting a criminal case against a person represented by a lawyer whose partner is the spouse of the Assistant District Attorney.

Footnote

[1] Rule 3.4(f) provides:

(f) 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.