May a defense attorney practice criminal law in a jurisdiction where the attorney's spouse is an Assistant Commonwealth's Attorney?

Plain-English summary

The committee addressed an attorney whose wife was one of eighteen Assistant Commonwealth's Attorneys in an office, working primarily in the Juvenile Division, who asked whether he could practice criminal law in that jurisdiction. The committee revisited Informal Opinion 412, which had barred such practice on an appearance-of-impropriety theory even where the spouse had no part in the husband's cases and full disclosure was made.

Council concluded that LE Op. 412 did not properly recognize Canon 5 and DR 5-101, which allow the disability arising from real or apparent conflicting interests to be overcome by the client's consent after full disclosure. It held that, assuming full disclosure and consent under Canon 5, it is ethically permissible for an attorney to practice before the criminal courts of a jurisdiction where the spouse is an Assistant Commonwealth's Attorney, provided the spouse has not had and does not have any contact with the matter at issue. The committee made clear that consent after disclosure could not cure representation where the spouse has actual contact with the case.

Currency note

This opinion was issued in 1980, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent. The Editor's Notes record that LE Op. No. 412 has been withdrawn by the Legal Ethics Committee. Treat this page as historical context, not current guidance.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: Could the attorney defend criminal cases where his spouse was an assistant prosecutor?

A: Under this 1980 opinion, yes, with full disclosure and the client's consent, but only if the spouse had not had and did not have any contact with the matter at issue.

Q: What if the prosecutor spouse was actually involved in the case?

A: Then consent after disclosure could not make the representation proper. The committee limited its holding to matters with which the spouse had no contact.

Q: Did this change the earlier rule?

A: Yes. The committee found that the earlier Informal Opinion 412, which had barred such practice on an appearance-of-impropriety theory, did not properly recognize Canon 5 and DR 5-101; LE Op. 412 was withdrawn.

Background and rules framework

The opinion grounded its analysis in the former Code's Canon 5 and DR 5-101, allowing a conflict-based disability to be overcome by client consent after full disclosure. The committee note maps the question onto current Virginia Rule 1.8(i), corresponding to ABA Model Rule 1.7 (concurrent conflicts) and Model Rule 1.8 (related lawyers).

Citations and references

Rules of Professional Conduct:

• Canon 5 (former Code)
• DR 5-101 (former Code)
• Virginia Rule 1.8(i) (related lawyers) (cited in the committee note)
• ABA Model Rule 1.7 (conflicts of interest)
• ABA Model Rule 1.8 (current client conflicts; related lawyers)

Other opinions cited:

• Informal LE Op. 412 (withdrawn), which had barred such practice on an appearance-of-impropriety theory

See also

• VA LEO 190: Related Lawyers on Opposite Sides
• VA LEO 556: Assistant County Attorney Whose Spouse Litigates Against the County
• VA LEO 665: Part-Time Prosecutor Whose Spouse Is a Law Partner

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0185.pdf

Original opinion text

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

LEGAL ETHICS OPINION 185

REPRESENTATION OF DEFENDANTS BEFORE CRIMINAL COURTS IN JURISDICTION WHERE ATTORNEY’S SPOUSE IS ASSISTANT COMMONWEALTH’S ATTORNEY.

Subject: Attorney's Representation of Defendants Before the Criminal Courts in a Jurisdiction where the Attorney's Spouse is an Assistant Commonwealth's Attorney.

Inquiry. Attorney's wife is an Assistant Commonwealth's Attorney. She is one of eighteen attorneys in that office and is one of four attorneys who are assigned to the Juvenile Division. The Juvenile Division also has a supervisor attorney and two other attorneys who take some of the overflow from that division. Her practice is primarily in the Juvenile and Domestic Relations Court, but she does handle some cases in the Circuit Court.

The attorney has asked the Committee if he may ethically practice criminal law in Juvenile and Domestic Relations Court, Police Court and/or Circuit Court in the jurisdiction were his wife is an Assistant Commonwealth's Attorney.

Opinion: The Legal Ethics Committee, in Informal Legal Ethics Opinion 412, held that it was improper for an attorney to practice criminal law in the courts of the county where his wife is an Assistant Commonwealth's Attorney, even though she had no part in the prosecution of the husband's cases and full disclosure was made to the defendant. It was the opinion of the Committee that such representation created an appearance of impropriety.

Council is of the opinion that LE Op. 412 does not properly recognize the provision of Canon 5 of the Code of Professional Responsibility, and particularly the provisions of Disciplinary Rule 5-101 [DR:5-101] which permit the disability arising from the presence of real or apparent conflicting interests to be overcome by consent of a lawyer's client after full disclosure of the conflict. Council does not believe, however, that consent after full disclosure standard could be applied to make ethically proper representation of a criminal defendant by an attorney whose spouse is an Assistant Commonwealth’s Attorney under circumstances where the spouse has actual contact with the case. Accordingly, assuming full disclosure and consent pursuant to the provisions of Canon 5, Council holds it is ethically permissible for an attorney to practice before the criminal courts of a jurisdiction in which the attorney's spouse is an Assistant Commonwealth's Attorney if the attorney's spouse has not had and does not have any contact with the matter at issue.

Council Opinion
October 31, 1980

Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.

Editor’s Notes. – L E Op. No. 412 has been withdrawn by the Legal Ethics Committee.