April 3, 1986
A spouse of a chief assistant prosecutor may represent defendants accused of violating a city ordinance of a city within that county, provided that prosecution of the defendants is carried out entirely by a city lawyer. The spouse of a chief assistant prosecutor may represent defendants who are being prosecuted in a separate county. The intended spouse of a chief assistant prosecutor may not continue to represent clients in cases in which the prosecutor's office is involved in a position adverse or differing from the clients' interests.
References: MCPR DR 5-101; C-213; CI-65, CI-340, CI-607.
A lawyer is affianced to the chief assistant prosecutor in a county. The lawyer asks whether it is ethical for the lawyer (1) to accept court appointments in criminal cases where the defendant is charged under the ordinances of a city within the county and prosecuted by a city lawyer; (2) to accept court appointments in criminal and probate cases in another county; or (3) to continue until the marriage representation of defendants in criminal cases and juveniles or incompetents in probate cases now pending in the county where the office of the affianced prosecutor is involved .
Prior opinions of this committee have clearly established that it is not proper for a husband and wife who are both lawyers to represent adverse parties. CI-65, C-213. It would follow that spouses should not represent opposing interests in a criminal case. This committee, in C-213 has stated that it is proper for the spouse of an assistant prosecutor to accept criminal appointments in that county, provided that husband and wife are not opposing counsel in any given case, and further provided that a full written disclosure of spouse's employment is made to the client, and written consent from the client is obtained prior to undertaking the representation.
The office of a city lawyer and the office of a prosecuting lawyer are in fact and in the eyes of the general public separate enterprises. The offices of a county prosecutor and of a city lawyer within the county customarily function with such degree of autonomy that although both perform similar functions (the prosecution of misdemeanors), the functions are carried out separately, from separate offices, and by entirely separate staffs.
It should be noted, however, that were a city ordinance violation to be dismissed and new charges brought against the criminal defendant by the county prosecutor's office, it would be improper for the spouse of the chief assistant prosecutor to appear in that case for the defendant. The reasoning is that as chief assistant prosecutor with supervision of all other assistant prosecutors, the spouse effectively appears in all prosecutions brought by that county, and the stricture on spouses representing opposing interests in the same case would apply. CI-65, C-213.
The public readily distinguishes between the offices of the prosecutor of one county and that of an adjacent county. For that reason, the spouse of a chief assistant prosecutor may represent an individual in a criminal case in another county, or in a juvenile or incompetency proceeding in a probate court in another county.
The jurisdiction of this committee extends prospectively only. We may not comment on past actions of persons who request ethical opinions. The inquirer in the instant case stated an intention to, in the future, represent defendants in criminal cases and act as a guardian-ad-litem in probate court cases in the county where the intended spouse is chief assistant prosecutor during the interval between the engagement and the intended marriage.
Although the relationship between intended spouses is distinct from that which exists between spouses, it is closely akin in character. An engagement is a public declaration of a compact for a shared life. The creation of such a compact inherently implies that the parties to it are in close and frequent communication, and are in one another's confidence to nearly the same degree as are spouses.
This committee has previously, in C-340, stated that spouses may not properly represent adverse interests. In CI-670 we stated that "a court appointed defense attorney should not try a case against a member of the prosecutor's staff who is a roommate and a close personal friend of ten years. In this situation, not even full disclosure and consent of the defendant can resolve the potential conflict."
A general rule may be stated that two lawyers who are in frequent, close, and confidential communication in the context of a personal relationship should not represent adverse parties.
A lawyer must be aware that frequent, close and confidential communication in the context of a personal relationship with an opposing lawyer may subtly and subconsciously influence the lawyer's handling of a case, creating the conflict of interest described in MCPR DR 5-101. The lawyer should be wary of this possibility regardless of the appearance of the relationship with the opposing lawyer in the eyes of the public.
For this reason, it is not proper for the intended spouse of a chief assistant prosecutor to represent criminal defendants, or others whose interests are adverse to interests represented by the prosecutor's office, in that county.
It should be noted that this opinion is limited in scope to a situation involving a lawyer spouse employed in a supervisory position in a prosecutor's office. The direct chain of command which is characteristic of a prosecutor's office and not necessarily characteristic of the structure of a private firm, nor are political pressures present in the private sector to the same degree as in a prosecutor's office. No opinion is expressed herein regarding a potential conflict with a lawyer spouse in private practice.