Can a criminal defense lawyer whose spouse works in the District Attorney's office defend cases prosecuted by that office, and is the DA's consent required?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current Maine Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer planning to handle criminal defense asked whether he could defend matters handled by the District Attorney's office when his spouse is a member of that office (but not involved in the particular prosecution), with the client's consent, and whether the District Attorney's consent was also needed.
The Commission applied the disclosure-of-interest and conflict provisions of Bar Rules 3.4(a), 3.4(b), and 3.4(c), which require a lawyer to disclose to a prospective client any relationship with the adverse party or interest in the matter that would influence the client's choice of counsel, and bar accepting employment where the lawyer's independent professional judgment would likely be affected absent the client's informed written consent. These rules govern the relationship between the defense lawyer and his client; none requires the consent of the opposing party. So, assuming full and accurate disclosure and the client's informed written consent, the defense lawyer may take the case whether or not the District Attorney consents.
The Commission distinguished its earlier Grievance Commission Advisory Opinion No. 42 (1983), which involved the reverse situation: an assistant district attorney prosecuting a case defended by a member of her husband's firm. There, because the assistant district attorney's 'client' is the State, consent under Rule 3.4(f) was required, and either the District Attorney or the Attorney General could grant it on the State's behalf. That conclusion has little bearing on defense counsel here, who answers to a different client.
Currency note
This opinion was issued in 1986, 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 Treat this page as historical context, not current guidance.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 a defense lawyer married to a prosecutor defend cases from that prosecutor's office?
A: The opinion concluded yes, provided the spouse has no involvement in the prosecution and the lawyer makes full disclosure and obtains the client's informed written consent.
Q: Does the District Attorney have to consent to the defense lawyer's involvement?
A: The opinion concluded no. The conflict rules govern the relationship between the defense lawyer and his own client and do not require consent from the opposing party.
Q: Why is the answer different when it is the prosecutor who is related to defense counsel?
A: The opinion explained that a prosecutor's 'client' is the State, so under Rule 3.4(f) the State's consent (through the District Attorney or Attorney General) is required, as in Opinion No. 42. Defense counsel answers to a different client and faces no such requirement.
Background and rules framework
The opinion interprets former Maine Bar Rules 3.4(a) (disclosure of interest), 3.4(b) (conflict of interest), and 3.4(c) (interest of the lawyer), with reference to Rule 3.4(f) (consent where the client is a public body). These correspond to ABA Model Rule 1.7 (concurrent conflicts of interest), which addresses, among other things, conflicts arising from a lawyer's close personal relationship with opposing counsel and the need for the affected client's informed consent.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 (concurrent conflicts of interest; personal-interest conflicts)
- Maine Bar Rules 3.4(a), 3.4(b), 3.4(c), 3.4(f)
Other opinions cited:
- Maine Grievance Commission Advisory Opinion No. 42 (1983): assistant district attorney prosecuting a case defended by a member of her husband's firm
See also
- ABA Formal Op. 97-406: Representing Opposing Counsel
- Maine Ethics Op. 73: Lawyer-Councilor Conflicts
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Issued by the Professional Ethics Commission
Date Issued: May 7, 1986
Question
An attorney who proposes to handle criminal defense cases has requested an advisory opinion on the following question: May a criminal defense counsel, whose spouse is a member of the District Attorney's Office, defend matters handled by the District Attorney's Office, as long as the spouse is not involved in any way with the prosecution, and the attorney's client consents to the arrangement? That is, in such a situation, is the consent of the District Attorney required?
Opinion
Rules 3.4(a), 3.4(b) and 3.4(f) of the Bar Rules are directly applicable to this inquiry:
(a) Disclosure of Interest. Before accepting any professional employment a lawyer shall disclose to the prospective client his relationship, if any, with the adverse party; his interest, if any, in the subject matter of the employment; all the circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that a lawyer knows or reasonably should know would influence the client in the selection of a lawyer.
(b) Conflict of Interest. A lawyer shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests, except to the extent such employment is permitted by subdivision (d) of this rule.
(c) 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.
It is obvious that these rules govern the relationship between the defense attorney and his prospective client. None of these rules requires consent from the opposing party. Thus, on the facts given, assuming full and accurate disclosure and informed written consent by the client, the defense attorney may accept the case regardless of whether the District Attorney consents.
This situation is somewhat the reverse of the facts discussed in the Grievance Commission's Advisory Opinion No. 42, issued in 1983. The holding in that opinion was that the involvement of an Assistant District Attorney in a prosecution which was defended by a member of her husband's law firm required consent from the District Attorney or the Attorney General. For the purpose of deciding the Assistant District Attorney's ethical duties her 'client' is the State. Opinion No. 42 concluded that the consent of this client was needed under 3.4(f), but that either the District Attorney or Attorney General was competent to grant this consent on behalf of the State. That conclusion, however, has little bearing on the ethical duties of defense counsel in the present situation since he has a different client to whom he is responsible.
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