My law partner is married to the municipality's deputy police chief, who also handles some prosecutions. Our firm won't touch cases where the spouse investigated, and I take other police-department criminal cases after disclosing the relationship. Does this policy comply with the conflicts rules?

Plain-English summary

The inquiring attorney's law partner was married to a municipality's deputy chief of police, who also served as one of the municipality's prosecuting officers. The firm had adopted a policy: the partner married to the deputy chief handles no criminal matters relating to the municipality; the firm declines representation entirely if the spouse was involved in the investigation; and if the spouse had no investigative involvement, the inquiring attorney (not the partner) takes the case after disclosing the relationship to the prospective client.

The panel quoted Rule 1.7(b) in full and analyzed the policy in three parts. First, declining representation when the spouse was involved in the investigation was, in the panel's words, "a sound policy," since the deputy chief would likely be a witness and the relationship could potentially, though not invariably, materially limit the representation under Rule 1.7(b). Second, where the spouse had no investigative involvement, the panel found the relationship still potentially limits the representation, to a lesser extent, so a Rule 1.7(b) conflict exists that the firm's policy did not fully address: the inquiring attorney and the partner must additionally satisfy Rule 1.7(b)'s waiver conditions, a reasonable belief the representation will not be adversely affected and the client's consent after consultation, before proceeding. Third, the panel found representing criminal defendants where the spouse serves only as prosecuting officer proper, because a prosecuting officer's role is typically limited to the arraignment stage and so does not materially limit the representation.

The panel concluded the firm's policy complies with Rule 1.7(b) once the waiver conditions, reasonable belief of no adverse effect and informed client consent, are satisfied for every representation the policy allows the inquiring attorney to take.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a personal relationship between a firm lawyer and a law-enforcement officer connected to a criminal matter can create a Rule 1.7(b) conflict even for a different lawyer in the firm who has no personal relationship with the officer, with the degree of limitation varying by whether the officer investigated the case or merely handled arraignment-stage prosecution duties. The opinion requires the firm to satisfy Rule 1.7(b)'s reasonable-belief and informed-consent conditions on a per-case basis, not merely to rely on a screening policy that declines only the clearest conflicts.

Common questions

Q: My law partner is related to or married to a local law enforcement officer. Does that create a conflict for me if I take criminal defense cases involving that department?

A: Potentially, yes, even if you personally have no relationship with the officer. The panel held the relationship can materially limit the representation under Rule 1.7(b), requiring disclosure and consent.

Q: Does it matter whether the officer investigated the case or just prosecuted at arraignment?

A: Yes. The panel found investigative involvement presents a more significant conflict concern, while a role limited to prosecuting at arraignment does not materially limit the representation.

Q: Is it enough for my firm to have a policy screening out the clearest conflicts, like cases the related officer personally investigated?

A: Not by itself. The panel found the firm's screening policy still needed the Rule 1.7(b) waiver conditions, a reasonable belief of no adverse effect and the client's informed consent after consultation, satisfied for the cases the policy does allow.

Background and rules framework

The opinion applies Rule 1.7(b) (Conflict of Interest: General Rule), the Model Rule counterpart of the same number, quoted in full, covering material limitation from the lawyer's responsibilities to another client, a third person, or the lawyer's own interests, and the reasonable-belief and consultation-consent conditions for waiver.

Citations and references

Rules of Professional Conduct:

• MR 1.7(b) (Conflict of Interest: General Rule) / RI Rule 1.7(b)

See also

• CA COPRAC Op. 1984-83: The Public Defender Spouse May Represent an Accused Being Prosecuted by the District Attorney Spouse
• ABA Formal Op. 494: Conflicts Arising Out of a Lawyer's Personal Relationship With Opposing Counsel

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202004-03.pdf

Original opinion text

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

Final

                  Rhode Island Supreme Court Ethics Advisory Panel
                       Opinion No. 2004-03 Request No. 877
                                Issued March 5, 2004

FACTS:

   The inquiring attorney’s law partner is married to the deputy chief of police in a

municipality. The deputy chief is also one of the prosecuting officers for the municipality.
The law firm has established the following policy with respect to representing individuals
who are charged with crimes by the municipality’s police department.

    The law partner who is married to the deputy chief does not handle any criminal

matters relating to the municipality. The law firm declines the representation if the law
partner’s spouse is involved in the investigation. If the law partner’s spouse has no
involvement in a criminal investigation, the inquiring attorney will take on the
representation after disclosing the relationship to the prospective client.

ISSUES PRESENTED:

   The inquiring attorney asks whether the policy complies with the Rules of

Professional Conduct.

OPINION:

    The law firm’s policy complies with the conflicts provisions of the Rules provided

that whenever the inquiring attorney takes on the representation of an individual charged
with a crime by the municipality’s police department, the conditions for waiver pursuant to
Rule 1.7(b) are satisfied, i.e. the inquiring attorney and the law partner reasonably believe
that the representation will not be adversely affected, and the client consents after
consultation.

REASONING:

      The conflicts provisions of Rule 1.7(b) are pertinent to this inquiry. Rule 1.7(b)

states:
(b) A lawyer shall not represent a client if the
representation of that client may be materially
limited by the lawyer's responsibilities to another
client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely
affected; and
Final 2004-03
Page 2 of 2

                       (2) the client consents after consultation.
                       When representation of multiple clients in
                       a single matter is undertaken, the
                       consultation shall include explanation of
                       the implications of the common
                       representation and the advantages and
                       risks involved.

     The law firm’s policy of declining the representation of a criminal defendant if

the law partner’s spouse is involved in the investigation is a sound policy. As an
investigating officer the deputy chief will likely be a witness, and as such potentially,
though not invariably, presents a conflict of interest for the lawyers in the firm pursuant to
Rule 1.7(b). That is, the representation of the person charged could be materially limited
because of the relationship between the law partner and the deputy chief.

      The Panel next considers the situation where the law partner’s spouse is not

involved in a criminal investigation by the municipality’s police department, in which case
the inquiring attorney, but not the law partner, takes on the representation after disclosure.
Similar to the preceding scenario, though to a lesser extent, the relationship potentially
limits the representation, thus presenting a conflict of interest under Rule 1.7(b). The law
firm’s policy falls short in one aspect, namely, before taking on the representation of
criminal defendant in this situation, the inquiring attorney and his/her law partner must
satisfy the conditions of waiver set forth in Rule 1.7(b). If the inquiring attorney and
his/her law partner reasonably believe that the representation would not be adversely
affected by the relationship and the client consents after consultation, the conflict is
waived and the representation is permissible. See Rule 1.7(b).

     Finally, the Panel believes that the inquiring attorney’s representation of criminal

defendants in cases where the law partner’s spouse serves as the prosecuting officer before
the court is proper. A prosecuting officer’s role is typically limited to the arraignment
stage of the proceedings and as such does not present a material limitation on the
representation of a defendant by the inquiring attorney.

      In summary, the Panel concludes that the law firm’s policy complies with the

conflicts provisions of Rule 1.7(b) provided the conditions for waiver under Rule 1.7(b)
are satisfied, namely, that the inquiring attorney and the law partner reasonably believe
that the representation will not be adversely affected, and the client consents after
consultation.

    The Panel’s guidance is restricted to interpretations of the Rules of Professional

Conduct and does not extend to issues under the State Ethics Code or any other rules,
regulations or laws that may have bearing on the issues raised by this inquiry.