Can an assistant district attorney prosecute cases defended by her husband's law firm, and can the government consent to that conflict?

Plain-English summary

The Commission was asked to reconsider Opinion #36 (January 17, 1983), which had held that an assistant district attorney could not ethically prosecute criminal cases defended by lawyers in the firm where her husband was a partner. The earlier opinion rested on the often-cited rule that the public cannot consent to a representation that "may be affected by an interest of the lawyer," which, given how many local cases the husband's associates defended, effectively barred her employment. Because the district attorney's office was in a sparsely settled area short on part-time assistants, the bar created a hardship, and the Commission reconsidered whether government officials could consent on behalf of the public.

The Commission traced the no-public-consent rule to ABA Opinion #16 (1929), which asserted without authority or discussion that "no question of consent can be involved as the public is concerned and it cannot consent," and noted that later ABA Opinions (#34, #74, #296) and New York State Bar Opinion #40 repeated it without analysis. It observed that, in practice, prosecutors routinely make consent-like practical judgments (granting continuances, waiving formalities, plea bargaining), and saw no persuasive reason a supervising official could not similarly judge whether an assistant should participate despite a possible conflict. It pointed to ABA Opinion #342 (1977) (permitting a former government lawyer's new firm to handle a matter if he is screened to the agency's satisfaction) and to the 1983 amendment of Maine Rule 3.4(k), which lets a private firm take a matter in which a member had government responsibility if "the appropriate governmental officer or agency" consents in writing.

Finding no legal basis for disabling responsible officials from consenting where a potential conflict will not adversely affect the government lawyer's judgment, the Commission amended Opinion #36. It held the assistant may prosecute cases defended by her husband's firm with the informed written consent of the District Attorney or the Attorney General. Even with consent, Rule 3.4(b) (no employment likely to adversely affect independent judgment) permits her to act only where she gains no pecuniary benefit from the firm's participation, which can be achieved by segregating fees in such cases within the firm. The Commission assumed, per its prior opinion and Opinion #3 (1979), that Rule 3.4(b) likely could not be met in any case her husband personally defends.

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 the government consent to a prosecutor handling cases her spouse's firm defends?

A: The opinion concluded yes. Responsible government officials can consent; the assistant may prosecute such cases with the informed written consent of the District Attorney or Attorney General.

Q: Does this overrule the idea that 'the public cannot consent'?

A: The opinion rejected that rule as lacking a legal basis, tracing it to ABA Opinion #16 (1929), which stated it without authority, and noting prosecutors routinely make similar practical judgments.

Q: What condition does Rule 3.4(b) add even with consent?

A: The opinion concluded the assistant may act only where she receives no pecuniary benefit from her husband's firm's participation, which can be ensured by segregating fees in those cases within the firm.

Q: Can she prosecute a case her husband personally defends?

A: The opinion assumed Rule 3.4(b)'s requirements likely could not be met where the husband himself defends a case she is prosecuting.

Background and rules framework

The opinion interprets former Maine Bar Rules 3.4(b) (employment likely to adversely affect independent judgment), 3.4(f) (the lawyer's own interest and client consent), and 3.4(k) (vicarious disqualification, as amended in 1983 to allow government consent). These correspond to ABA Model Rule 1.7 (conflicts of interest, including consentable personal-interest conflicts) and Model Rule 1.11 (government officers and employees). The opinion revises Maine Opinion #36 and discusses ABA Opinions #16, #34, #74, #296, and #342.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest); Model Rule 1.11 (government officers and employees)
• Maine Bar Rules 3.4(b), 3.4(f), 3.4(k)

Cases:

• Re A. & B., 44 N.J. 331, 209 A.2d 101, concluding without discussion that the public cannot consent

Other opinions cited:

• Maine Professional Ethics Opinions No. 3 (1979) and No. 36 (1983, revised here)
• ABA Opinions No. 16 (1929), 34 (1931), 74 (1932), 296 (1959), and 342 (1977); New York State Bar Opinion No. 40; Arizona Bar Opinion No. 82-15 (1982)

See also

• Maine Ethics Op. 65: Defending Against an In-Law DA
• Maine Ethics Op. 49: Part-Time DA's Private Clients
• ABA Formal Op. 97-406: Representing Opposing Counsel

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89675

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: August 23, 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 Grievance Commission has been asked to reconsider Opinion #36 adopted January 17, 1983. In that opinion the Commission held that an Assistant District Attorney could not ethically prosecute criminal cases which were defended by lawyers associated with the law firm in which her husband is a partner. In support of the request for reconsideration, the Commission has been advised that its previous opinion has created a hardship on the District Attorney's office involved because it is located in a sparsely settled area in which able attorneys available for part-time employment as assistants are in short supply.

Critical to the conclusion reached in its previous opinion was the Commission's unquestioning acceptance of the frequently cited rule that the public cannot give its consent to a lawyer-client relationship in which the attorneys "may be affected by (an) interest of the lawyer." In the context of the present matter, the inhibition on obtaining consent to the representation operates as an effective bar to the employment because so many of the criminal cases handled in the local District Court are defended by the husband's law associates. The Commission has concluded that it should reconsider the correctness of its assumption that appropriate government officials as representatives of "the public" could not consent to a representation involving a possible conflict of interest.

As far as the Commission's research discloses, the notion that the public is disabled from giving its consent to a particular representation on the part of a government attorney appears to have had its genesis in Opinion #16 (1929) of the A.B.A. Committee on Professional Ethics. That opinion involved the question of whether a part-time prosecutor could undertake a criminal case being defended by one of his law partners. In the course of holding that the representation would be improper, the Committee stated that:

No question of consent can be involved as the public is concerned and it cannot consent.

No authority was cited for this proposition and the opinion contained no further discussion of the Committee's apparent rejection of the possibility that someone in a position of authority in the government office involved could consent on behalf of the state.

Opinion #16 was subsequently cited with approval in A.B.A. Opinions #34 (1931), #74 (1932) and #296 (1959). In none of these opinions, however, was the conclusion that the public could not give its consent challenged or discussed. Similarly, in N.Y. State Bar Ass'n Opinion #40, it was held that the public could not consent to the prosecution of cases by a district attorney whose law associates were representing criminal defendants in the same courts, relying solely on Opinion #16.[1]

Despite its longstanding and apparently unchallenged acceptance by ethics committees, the concept that the public cannot give its consent to a particular course of conduct seems in individual cases to be generally ignored in the day-to-day conduct of the government's legal business. Prosecutors routinely agree to continuances, waive compliance with formalities, and even plea bargain with accused felons in discharging their responsibilities. It is difficult to perceive any persuasive reason why a district attorney or other government officer exercising supervisory responsibility should be disabled from making similar practical judgments about whether or not an assistant district attorney should participate in a particular case because of a possible conflict of interest with a respondent's counsel.

It is interesting to note that the A.B.A. itself has provided some precedent for permitting such practical judgments to be made in conflict of interest cases. In Opinion #342 (1977), it was held that a private law firm which had been joined by a former government lawyer could nevertheless undertake cases in which he had been substantially involved if he were screened from contact with the matter "to the satisfaction of the government agency concerned . . ." Strangely enough, the opinion made no mention of the rule forbidding consent by the public.

A similar result was reached by the Maine Court in 1983 in adopting an amendment to Rule 3.4(k). Subsection (1) of that rule now permits a private law firm to undertake a matter in which a member of the firm had substantial responsibility during former employment with the government if the written consent of "the appropriate governmental officer or agency is obtained."

Finding no legal basis for the rule generally disabling responsible government officials from consenting to an employment relationship when it is determined that a potential conflict of interest will not adversely affect the judgment of the government lawyer involved, the Commission concludes that Opinion #36 should be amended to permit the assistant district attorney in question to represent the state in cases defended by her husband's law firm provided the informed written consent of the District Attorney or the Attorney General is first obtained.

Although Rule 3.4(f) does not appear to limit the scope of the client's right to consent, Rule 3.4(b) forbidding the acceptance of employment if a lawyer's independent professional judgment will be, or is likely to be, adversely affected, would appear to permit the assistant district attorney in question to act only in cases in which she would receive no pecuniary benefit from the representation as a result of the participation by her husband's law firm. This could be accomplished by the segregation of fees in such cases within the firm. For the reasons set forth in our previous opinion and in Opinion #3 (1979), we also assume that it is unlikely that the requirements of Rule 3.4(b) could be met in any case in which the assistant district attorney's husband were to personally undertake the defense of a case which she was prosecuting.

For the reasons given, it is the Commission's opinion that an assistant district attorney may undertake criminal cases defended by her husband's law firm with the informed written consent of the District Attorney or the Attorney General and provided the requirements of Rule 3.4(b) are observed.

Footnote

[1] Equally unhelpful are Arizona Bar Ass'n opinion #82-15 (1982) and Re A. & B., 44 N.J. 331, 209 A.2d 101 both of which conclude without discussion that the public cannot give its consent to a representation involving a potential conflict of interest. See also Drinker, Legal Ethics 120 (1953).