WISBAR 1986

If an assistant district attorney is married to a deputy sheriff in the same county, must the prosecutor treat cases the spouse investigated differently?

Short answer: The opinion concluded that an assistant district attorney need not treat cases investigated by a deputy-sheriff spouse differently from cases investigated by other law enforcement personnel, provided the spouse's own official conduct does not itself become subject to possible prosecution. The committee reasoned that, compared with the criminal-defense-lawyer/sheriff-spouse situation it had addressed earlier, the prosecutor and deputy spouse are far less adversarial, so there is even less ethics concern.

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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1986
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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.
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Plain-English summary

Opinion E-86-1 addressed an assistant district attorney whose spouse is a deputy sheriff in the same county, and asked whether the standards of conduct applicable to attorneys require the prosecutor to treat cases the spouse investigated differently from those investigated by other law enforcement personnel. The committee answered no, provided the spouse's official conduct does not itself become subject to possible prosecution. Apart from that situation, the committee was aware of no ethical reason why the prosecutor's official contact with the deputy spouse should differ from contact with the spouse's colleagues.

The committee pointed to its earlier Opinion E-85-2, which addressed a criminal defense lawyer married to a sheriff's deputy and concluded there is no absolute prohibition against the lawyer representing clients investigated by the spouse. Because a prosecutor and a deputy spouse are far less adversarial than a defense lawyer and a deputy spouse, the committee found substantially less concern from the standpoint of legal ethics.

Currency note

This opinion was issued in 1986, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Personal-interest conflicts of this kind are now analyzed under SCR 20:1.7 / Model Rule 1.7. 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: Must a prosecutor handle cases investigated by a spouse who is a deputy sheriff differently?

A: The committee concluded no, provided the spouse's official conduct does not itself become subject to possible prosecution; otherwise the contact need not differ from that with the spouse's colleagues.

Q: When would a conflict arise?

A: The opinion identified one circumstance: where the deputy-sheriff spouse's own official conduct becomes subject to possible prosecution.

Background and rules framework

The opinion analyzed a personal-interest conflict arising from the marriage of a prosecutor and a law enforcement officer in the same county, applying the former Code's conflict principles (SCR 20.24). That concern is now addressed by SCR 20:1.7 / Model Rule 1.7, which governs conflicts arising from a lawyer's personal interests and relationships.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20.24 / Model Rule 1.7 (conflicts of interest; personal interests) (former Code provision)

Other opinions cited:

  • Wisconsin Formal Op. E-85-2 (criminal defense lawyer married to a sheriff's deputy)

See also

Source

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