Does a lawyer's family relationship with a material witness and an alleged co-conspirator create a conflict that bars representing another party in the same case?

Plain-English summary

The inquirer asked whether a family relationship between a lawyer and both a material fact witness and an alleged co-conspirator creates a conflict of interest that would prohibit the lawyer from representing another party in the same case. The committee identified RPC 1.7(b) as the applicable rule: a lawyer may not represent a client if the representation may be materially limited by the lawyer's responsibilities to another client or a third person, or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after consultation and full disclosure.

The committee said the familial relationship gives rise to a conflict because it is likely the lawyer's representation may be materially limited by the lawyer's own interests or responsibilities to family members. The lawyer must assess whether it is reasonable to believe the representation will not be adversely affected and, if proceeding, must immediately advise the client of the material facts (including the existence and nature of the family relationships) and obtain written consent.

On these facts, the committee concluded it is not reasonable to believe the representation would not be adversely affected. It gave examples of the pressure the lawyer could face: a prosecutor offering the client a favorable plea in exchange for testimony incriminating the lawyer's co-conspirator family member; the witness family member deciding whether to comply with a subpoena that implicates the witness's own penal interest; and the lawyer feeling pressure to avoid investigative avenues favorable to the client but unfavorable to a family member. Because representation would likely violate RPC 1.7(b), the committee said the lawyer should advise the client that representation is not permitted and withdraw.

Currency note

This opinion was issued in 2002, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which reorganized the conflict-of-interest rule (current RPC 1.7 uses a "concurrent conflict" framework with informed consent under RPC 1.7(b)). 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated a lawyer's close family ties to a co-conspirator and a material witness as a personal-interest and third-person conflict under RPC 1.7(b). The opinion treats the conflict as one the lawyer could ordinarily try to cure with reasonable belief plus written informed consent, but concludes that on these criminal-case facts no reasonable belief that the representation would be unaffected is possible, so the path is to decline and withdraw rather than seek consent.

Common questions

Q: Does being related to a witness and an alleged co-conspirator disqualify a lawyer from the case?

A: The committee concluded the family relationship gives rise to an RPC 1.7(b) conflict, and that on these facts it is not reasonable to believe the representation would not be adversely affected, so the lawyer should not represent the party and should withdraw.

Q: Could the client just consent to the conflict in writing?

A: The committee said RPC 1.7(b) allows representation only if the lawyer reasonably believes it will not be adversely affected and the client consents in writing after full disclosure; here, because the committee found no reasonable belief was possible, consent could not cure the conflict.

Q: Why is the conflict so serious in a criminal case like this?

A: The committee gave examples: a plea offer conditioned on incriminating the lawyer's co-conspirator family member; the witness family member's subpoena decision implicating that person's own penal interest; and the lawyer's potential pressure to avoid investigation that helps the client but hurts a family member.

Background and rules framework

The opinion applies Washington RPC 1.7(b) (conflict of interest based on the lawyer's responsibilities to third persons or the lawyer's own interests; corresponding to Model Rule 1.7), quoting the rule's reasonable-belief-plus-written-consent standard. The committee treated the lawyer's family relationships to a co-conspirator and a material witness as a material-limitation conflict that, on these criminal-case facts, could not be cured by consent. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7(b) (conflict of interest; material limitation by the lawyer's own interests or duties to a third person)

See also

• WSBA Ethics Op. 1096: Client as Opposing Expert Witness, Conflict and Withdrawal
• WSBA Ethics Op. 1420: Conflict in Representing Both Spouses (Personal Injury and Dissolution)
• WSBA Ethics Op. 1214: Insurer/Receiver and Insureds' Conflict, No Consent

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1248

Original opinion text

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

Advisory Opinion: 2007
Year Issued: 2002
RPC(s): RPC 1.7(b)
Subject: conflict of interest, family relationship

The inquirer asks whether the existence of a family relationship between a lawyer and a material fact witness and an alleged co-conspirator constitutes or gives rise to a conflict of interest such that it would prohibit representation of another party in the same case.

The rule applicable to the issue raised by the inquirer is RPC 1.7(b) that states, “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 the lawyer reasonably believes that the representation will not be adversely affected and the client consents in writing after consultation and a full disclosure of the material facts.”

The familial relationship between the lawyer, co-conspirator and material witness gives rise to a conflict of interest because it is likely that the lawyer’s representation of the client may be materially limited by the lawyer’s own interests or the lawyer’s responsibilities to third parties, namely his family members. The lawyer must assess whether or not it is reasonable to believe that the representation will not be adversely affected. The lawyer must immediately advise his client of the material facts including the existence and nature of the familial relationships and get the client’s consent to such representation in writing.

In this case, it is the opinion of the Committee that it is not reasonable to believe that the representation will not be adversely affected by the family relationship.

There is a potential that the lawyer will be compelled to look out for the interests of his family members. Consider the following examples: 1) The prosecutor offers the client a favorable plea bargain in exchange for testifying against or incriminating the lawyer’s co-conspirator family member; 2) the material witness, another family member of the lawyer must decide whether to comply with a subpoena requiring appearance, implicating their own penal interest; and, 3) the lawyer may feel pressure to steer away from developing avenues of investigation favorable to their client but unfavorable to their family member.

Since the Committee believes it is likely that representation would violate RPC 1.7(b), the attorney should advise the client that representation is not permitted by the Rules of Professional Conduct and withdraw.