OHBPC December 9, 2016

Can a criminal defense lawyer represent a defendant when the lawyer's spouse is a police officer or detective at the arresting agency?

Short answer: The opinion concluded that a lawyer is not categorically barred from defending a criminal client when the lawyer's spouse is an officer or detective at the arresting or investigating agency who is not involved in the case. The lawyer must evaluate whether a material-limitation conflict exists under Prof. Cond. R. 1.7(a)(2); if one does and the lawyer wants to proceed, the lawyer may do so only if able to provide competent and diligent representation, the client gives informed consent confirmed in writing, and the representation is not prohibited by law. If the lawyer cannot proceed, that personal-interest conflict generally is not imputed to other lawyers in the firm or public office under Rule 1.10(a).

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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The Board addressed a lawyer who wanted to represent criminal defense clients while her spouse was an officer or detective at the agency that arrested or investigated the client, though the spouse was not involved in the case. The Board framed the issue under Prof. Cond. R. 1.7(a)(2): a conflict can arise, even without direct adversity, when there is a substantial risk that the lawyer's ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited by the lawyer's own personal interests. Citing Rule 1.7 comments [14] and [20], the Board explained that the mere possibility of harm does not itself require disclosure and consent; the lawyer must judge whether a difference in interests is likely to arise and, if so, whether it will materially interfere with the lawyer's independent professional judgment.

Applying that, the Board said relevant considerations include whether the lawyer could cross-examine the spouse's coworkers or superiors and whether the spousal relationship compromises the duty of loyalty. If the lawyer determines no material-limitation conflict exists, the representation may proceed. If the lawyer believes one exists, the lawyer may still accept or continue only if the lawyer can provide competent and diligent representation, the client gives informed consent confirmed in writing, and the representation is not prohibited by law and does not pit one client against another in the same proceeding (Rule 1.7(b)). The Board recommended that this type of representation be avoided when possible, given the complicated personal and professional obligations involved.

On imputation, the Board concluded that if the lawyer cannot undertake or continue the representation because of this material-limitation conflict, the conflict generally is not imputed to other lawyers in the firm or public office, because Prof. Cond. R. 1.10(a) does not impute a personal-interest conflict that does not present a significant risk of materially limiting the remaining lawyers' representation.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, a lawyer whose spouse works for the arresting or investigating agency is not categorically disqualified; the lawyer must perform the Rule 1.7(a)(2) material-limitation analysis. Per the opinion, if a conflict exists and the lawyer seeks to proceed, the lawyer may do so only when able to provide competent and diligent representation, the client gives informed consent confirmed in writing, and the representation is not prohibited by law. The Board recommended that such representation be avoided when possible. The opinion further holds that a resulting personal-interest disqualification generally is not imputed to the lawyer's firm or public office under Rule 1.10(a).

Common questions

Q: Can a defense lawyer take a case where the lawyer's spouse is a police officer at the arresting agency?

A: The opinion concluded there is no categorical bar where the spouse is not involved in the case; the lawyer must assess whether a material-limitation conflict exists under Prof. Cond. R. 1.7(a)(2).

Q: What makes the spousal relationship a conflict?

A: The opinion concluded the question is whether the lawyer's personal interest creates a substantial risk of materially limiting the representation, considering factors like cross-examining the spouse's coworkers and the duty of loyalty.

Q: If a conflict exists, can the lawyer still represent the client?

A: The opinion concluded yes, only if the lawyer can provide competent and diligent representation, the client gives informed consent confirmed in writing, and the representation is not prohibited by law (Rule 1.7(b)); the Board recommended avoiding the representation when possible.

Q: Does the conflict disqualify the lawyer's whole firm?

A: The opinion concluded generally no; a personal-interest conflict of this kind is ordinarily not imputed to other lawyers in the firm or public office under Rule 1.10(a).

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.7 (conflict of interest: current clients), focusing on the 1.7(a)(2) material-limitation standard and the 1.7(b) conditions for proceeding despite a conflict, together with the imputation rule in Rule 1.10(a) (Model Rules 1.7, 1.10). It draws on Rule 1.7 comments [14] (likelihood and materiality of differing interests) and [20] (the lawyer's own interests).

Citations and references

Rules of Professional Conduct:

Ohio Prof. Cond. R. 1.7 (conflict of interest: current clients), incl. 1.7(a)(1)-(2), 1.7(b), 1.7(c), and cmts. [14], [20] (Model Rule 1.7)
Ohio Prof. Cond. R. 1.10(a) (imputation of conflicts of interest) (Model Rule 1.10)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_16-012.pdf

Original opinion text

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

OHIO BOARD OF PROFESSIONAL CONDUCT
OPINION 2016-12
Issued December 9, 2016

Conflict of Interest when Spouse of Criminal Defendant’s Lawyer is an Officer
                Employed by Arresting or Investigating Agency

Syllabus of Opinion:

    A lawyer is not prohibited from accepting representation of a defendant in a

criminal matter where the lawyer’s spouse is an officer or detective employed with the
arresting or investigating agency and is not involved in the case. If a lawyer determines
that a material limitation conflict exists and the lawyer seeks to accept or continue the
representation, then the lawyer must ensure that (1) he or she is able to provide
competent and diligent representation to the client; (2) the client gives informed consent,
confirmed in writing; and 3) the representation is not precluded by law. Prof.Cond.R.
1.7(a)(2), (b), (c).

    If a lawyer determines that the representation cannot be accepted or continued

due to the material limitation conflict, then that conflict generally is not imputed to other
lawyers in the firm or the public office under Prof.Cond.R. 1.10(a).

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in
response to a prospective or hypothetical question regarding the application of ethics rules
applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely
responsible for the content of this advisory opinion, and the advice contained in this opinion
does not reflect and should not be construed as reflecting the opinion of the Supreme Court
of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio
Board of Professional Conduct.
OHIO BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov/boards/boc

PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL

                                  OPINION 2016-12
                               Issued December 9, 2016

Conflict of Interest when Spouse of Criminal Defendant’s Lawyer is an Officer
                Employed by Arresting or Investigating Agency

SYLLABUS: A lawyer is not prohibited from accepting representation of a defendant in
a criminal matter where the lawyer’s spouse is an officer or detective employed with the
arresting or investigating agency and is not involved in the case. If a lawyer determines
that a material limitation conflict exists and the lawyer seeks to accept or continue the
representation, then the lawyer must ensure that (1) he or she is able to provide
competent and diligent representation to the client; (2) the client gives informed consent,
confirmed in writing; and 3) the representation is not precluded by law. Prof.Cond.R.
1.7(a)(2), (b), (c).

    If a lawyer determines that the representation cannot be accepted or continued

due to the material limitation conflict, then that conflict generally is not imputed to other
lawyers in the firm or the public office under Prof.Cond.R. 1.10(a).

QUESTION: A lawyer seeks guidance regarding whether she may accept or continue to
represent criminal defense clients when the spouse of the lawyer is an officer or detective,
employed by the agency that arrested or investigated the client, but the spouse is not
involved in the case.

APPLICABLE RULES: Prof.Cond.R. 1.7, 1.10.

OPINION: A lawyer must determine whether a conflict of interest exists under the Rules
of Professional Conduct in order to accept or to continue to represent a defendant in a
Op. 2016 -12 2

criminal matter when the lawyer’s spouse is an officer or detective employed with the
arresting or investigating agency, but is not involved in the case.

   Under Prof.Cond.R. 1.7(a), a conflict of interest is created if the lawyer’s

representation of the current client “will be directly adverse to another current client.”
Prof.Cond.R. 1.7(a)(1). A conflict of interest also is created even when clients are not
directly adverse, but where “there is a substantial risk that the lawyer’s ability to
consider, recommend, or carry out an appropriate course of action for that client will be
materially limited by the lawyer’s responsibilities for another client, a former client, or a
third person or by the lawyer’s own personal interests.” Prof.Cond.R. 1.7(a)(2).

   The mere possibility of subsequent harm from a potential material limitation

conflict, by itself, does not require disclosure and consent. Prof.Cond.R. 1.7, cmt. [14].
The critical questions a lawyer must evaluate are: (1) whether a difference in interests
between the client and the lawyer is likely to arise; and (2) if so, whether the difference in
interests will materially interfere with the lawyer’s independent professional judgment
in considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client. Prof.Cond.R. 1.7, cmt. [14]. The rationale for this rule is
that a lawyer’s own interests should not adversely affect the representation of the client.
Prof.Cond.R. 1.7, cmt. [20].

ANALYSIS:

Material Limitation Conflict:

   Analyzing these rules in relation to the question presented, the lawyer must

determine whether a material limitation conflict exists under Prof.Cond.R. 1.7(a)(2),
which would preclude the lawyer from accepting or continuing representation of a
defendant. Among the relevant considerations are whether the lawyer will be able to
conduct a direct or cross examination of his or her spouse’s coworkers or superiors or
whether the lawyer’s duty of loyalty to the client is compromised by his or her spousal
relationship.
Op. 2016 -12 3

   If the lawyer, in the exercise of his or her professional judgment, determines there

is no material limitation conflict, the Rules of Professional Conduct permit a
representation to continue or be accepted. If the lawyer believes a material limitation
conflict exists, the Rules of Professional conduct permit the lawyer to accept or continue
representation if (1) the lawyer is able to provide competent and diligent representation
to the client, (2) the client gives informed consent, confirmed in writing, and (3) the
representation is not otherwise prohibited by law and does not involve the assertion of a
claim by one client against another in the same proceeding. Prof. Cond. R. 1.7(b)(1)-(3).

   Although the Rules of Professional Conduct permit a lawyer to accept or continue

representation when faced with a material limitation conflict, the Board recommends that
this type of representation be avoided when possible due to the complicated
circumstances that may prevent the competent and diligent representation of the client
when a lawyer is faced with the type of conflicting professional and personal obligations
presented in this opinion.

Imputation of Conflict:

 If a lawyer determines that a representation cannot be undertaken or continued due

to a material limitation conflict, then that conflict generally is not imputed to the other
lawyers in the lawyer’s firm or public office. Prof.Cond.R. 1.10(a) states that when a
conflict of interest is based upon a personal interest and does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the
firm, then there is no imputation of that conflict by other lawyers in the firm.

CONCLUSION: When a lawyer is criminal defense counsel and the lawyer’s spouse is
an officer or detective employed with the arresting or investigating agency in the case, a
material limitation conflict may exist between the lawyer’s representation of the client
and the lawyer’s spouse, even if the spouse is not involved in the matter. If a material
limitation conflict exists and the lawyer seeks to accept or continue the representation,
then under Prof.Cond.R. 1.7 the lawyer may represent the client only if (1) competent
and diligent representation is provided to the client; (2) the client gives informed consent,
confirmed in writing; and (3) the representation is not prohibited by law or does not
involve the assertion of a claim by one client against the other in the same proceeding.
Op. 2016 -12 4

Prof.Cond.R. 1.7(b)(1-3), 1.7(c). If a lawyer determines a material limitation conflict exists
and cannot accept or continue the representation, then such a conflict ordinarily is not
imputed to the lawyer’s law firm.

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