Can a criminal defense lawyer represent a client in a case where her romantic partner, a deputy sheriff, was an investigating or supporting officer?

Plain-English summary

The inquirer is a criminal defense lawyer in a romantic relationship with a county deputy sheriff. The deputy was a "secondary or supporting officer" in two prior cases against her clients, and is again a "supporting officer" in a current double-homicide prosecution she is defending. The opinion partially modifies N.Y. State 660.

The opinion concludes the romantic relationship is a personal interest that triggers Rule 1.7(a)(2), under which a lawyer may not represent a client if a reasonable lawyer would conclude there is a significant risk the lawyer's professional judgment will be adversely affected by her own personal interests, unless the conflict is consentable and the client gives informed consent confirmed in writing. The opinion identifies the factors bearing on whether such a significant risk exists, including the closeness of the relationship, whether the deputy played a significant role in investigating the matter, whether the sheriff's department's actions are at issue, and whether the deputy will be a trial witness subject to cross-examination. It explains the concern that the lawyer might "pull her punches" or might reveal client confidences to the deputy.

On consentability, the opinion applies Rule 1.7(b): even where a significant risk exists, the lawyer may proceed with the client's informed written consent if she reasonably believes she can provide competent and diligent representation. The opinion states the conflict would be nonconsentable where the deputy was significantly involved in the investigation and is expected to testify, because the lawyer could not then reasonably conclude she could provide competent and diligent representation. The opinion distinguishes a romantic relationship between opposing counsel (defense lawyer and prosecutor), which it treats as nonconsentable, drawing on N.Y. State 660 (1994).

On imputation, the opinion applies Rule 1.10(a) and notes that New York, unlike the ABA Model Rules, imputes a lawyer's personal-interest conflict to the entire firm. The opinion partially modifies N.Y. State 660 to hold that the imputation is automatic rather than fact-dependent, observing that proposals to amend Rule 1.10 to track the Model Rule have not been adopted. Finally, under Rule 1.10(d), the opinion concludes the client may waive the imputed disqualification and consent to representation by another lawyer in the firm, even where the inquirer's own conflict would be nonconsentable.

In practice

Under this opinion, the lawyer must first determine, on the listed factors, whether a reasonable lawyer would find a significant risk to her independent judgment under Rule 1.7(a)(2). Per the opinion, if such a risk exists and her belief that she can still provide competent and diligent representation is reasonable, she may seek the client's informed written consent; if that belief would be unreasonable (for example, where the deputy was significantly involved in the investigation and will testify), the conflict is nonconsentable. Per the opinion, the conflict is automatically imputed to the firm under Rule 1.10(a), but the client may waive that firm imputation under Rule 1.10(d) so another firm lawyer can handle the matter.

Common questions

Q: Does dating a deputy sheriff automatically disqualify a defense lawyer from the case?

A: Per the opinion, not automatically. The lawyer must assess under Rule 1.7(a)(2) whether a reasonable lawyer would find a significant risk to her professional judgment, considering factors like the deputy's role in the investigation and whether he will testify.

Q: When would the conflict be nonconsentable?

A: Per the opinion, where the deputy was significantly involved in investigating the matter and is expected to be a prosecution witness, because the lawyer could not reasonably conclude she could provide competent and diligent representation. The opinion also treats a romantic relationship between defense counsel and the prosecutor as nonconsentable.

Q: If the lawyer is disqualified, can another lawyer in her firm take the case?

A: Per the opinion, yes, with client consent. The conflict is automatically imputed to the firm under Rule 1.10(a), but Rule 1.10(d) lets the client waive that imputation and consent to representation by another lawyer in the firm, even if the inquirer's own conflict is nonconsentable.

Background and rules framework

The opinion interprets New York Rule 1.7(a)(2) and (b) (personal-interest conflicts and consentability), Rule 1.0(j) (informed consent), and Rule 1.10(a), (d), and (h) (imputation of conflicts and its waiver). These correspond to ABA Model Rules 1.7, 1.0, and 1.10. The opinion notes that New York's Rule 1.10 differs from the ABA Model Rule, which does not impute a lawyer's personal-interest conflict to the firm unless it presents a significant risk of materially limiting the other lawyers' representation.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(j), 1.7(a)(2) & (b), 1.10(a), (d) & (h)
• ABA Model Rules 1.7, 1.10 (analogues; the opinion notes New York imputes personal conflicts where the Model Rule does not)

Other opinions cited:

• N.Y. State 660 (1994): defense lawyer dating an assistant district attorney; partially modified by this opinion on automatic imputation
• N.Y. State 1119 (2017): personal-interest conflict from former work colleagues
• N.Y. State 994, 975, 973, 968 (2013): only the underlying conflict, not its nonconsentability, is imputed

See also

• NYSBA Ethics Op. 1285: Assigned Counsel & Firm Conflicts
• CA Op. 2002-158: Public Defender Alternate Office Conflicts
• NYSBA Ethics Op. 1283: Attorney-Owned Title Agency

Source

• Landing page: https://nysba.org/ethics-opinion-1255-romantic-relationship-between-criminal-defense-attorney-and-county-deputy-sheriff/