Can a defense lawyer take criminal cases in a court where the lawyer's spouse serves as a prosecutor?
Apply this to your situation
This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
The committee considered an attorney who practices before juvenile and domestic relations, district, and circuit criminal courts, whose spouse prosecutes welfare fraud cases in the same district and circuit criminal courts. It concluded that, under these circumstances, it is not improper for the attorney to defend criminal cases generally, so long as the attorney does not defend the welfare fraud cases prosecuted by the spouse, citing its prior LE Op. 190.
Currency note
This opinion was issued in 1986, 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 records that current Rule 1.8(i) allows related lawyers to be directly adverse to one another if the clients consent. 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 Treat this page as historical context, not current guidance.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 lawyer defend criminal cases where a spouse is a prosecutor in the same courts?
A: Under this 1986 opinion, yes for criminal cases generally; the line the committee drew was that the attorney could not defend the specific welfare fraud cases prosecuted by the spouse.
Q: What separated the permitted from the prohibited cases?
A: Direct adversity to the spouse. The attorney could take criminal defense work generally but not the cases his spouse was prosecuting.
Background and rules framework
The opinion addresses a personal-interest and related-lawyer conflict, applying the former Code through the analysis in LE Op. 190. The committee note maps the question onto current Virginia Rule 1.8(i) on lawyers related as family members being directly adverse, the subject covered by ABA Model Rules 1.7 and 1.8.
Citations and references
Rules of Professional Conduct:
- Virginia Rule 1.8(i) / ABA Model Rules 1.7, 1.8 (related lawyers directly adverse; consent)
Other opinions cited:
- LE Op. 190 (relied on by the committee)
See also
- VA LEO 860: A Lawyer's Spouse as Opposing Counsel
- VA LEO 1020: Assistant Commonwealth's Attorney in Related Civil Cases
- VA LEO 848: A Prosecutor Taping a Represented Suspect
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0780.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
LEGAL ETHICS OPINION 780
CONFLICT OF INTEREST -
COMMONWEALTH’S ATTORNEY.
An attorney practices before juvenile and domestic relations, district and circuit
criminal courts. The attorney's spouse prosecutes welfare fraud cases in the same district
and circuit criminal courts. Under the circumstances, it is not improper for the attorney to
defend criminal cases, generally, so long as the attorney does not defend welfare fraud
cases prosecuted by the spouse. [ LE Op. 190]
Committee Opinion
July 25, 1986
Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly
adverse to one another if the clients consent.
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