April 6, 1981
An assistant prosecutor and a defense counsel who are also cohabitants (roommates) and close friends for 10 years may not represent adverse parties to the same case.
A defense counsel may represent a criminal defendant in a case prosecuted by this assistant prosecutor's office provided that it is not prosecuted by the assistant prosecutor who is a roommate and close personal friend of the defense counsel, provided written disclosure and consent from the client is obtained.
References: CI-65, CI-100, CI-467, CI-340; Superceded by R-3.
The following scenario forms the basis for this inquiry. You were appointed by the Probate Court, Juvenile Division as the attorney for a minor. The minor was charged with two counts of criminal sexual conduct in the first degree and larceny over $100.00. The Chief Prosecutor handled the Probable Cause Hearing. Since that time, the case has been assigned to an Assistant Prosecutor who is your roommate and a friend of ten years.
This Assistant Prosecutor has handled the waiver hearing, has argued "a few motions" against you and has participated, along with yourself, in a videotaped deposition all in connection with this same criminal matter.
Later, it became apparent that a potential conflict was developing and the judge arranged a conference with the parties. The judge suggested that a full disclosure on the record with the minor and the minor's parents present and also the approval of each on the record would clear up the conflict.
In fact, the minor and the parents did not object to your continuing on the case and requested that you stay. The judge thereafter apparently reversed the decision and ordered the Assistant Prosecutor off the case while retaining you as defense counsel.
In addition to the present criminal matter, there are at least two other criminal cases pending which are ready for trial in which you are either appointed or retained as defense counsel and your roommate is the prosecutor handling the cases. Against this background, are the following issues:
- Whether a court appointed defense attorney might try a case against an assistant prosecutor who happens to be a roommate and good friend of ten years, without fear of a bar grievance being upheld.
- If the prosecutor-roommate withdraws from the case, may you as court appointed attorney try the case with another prosecutor without fear of a bar grievance being upheld.
- Whether a full disclosure of he "roommate" situation on the record with approval of the minor and the parents will resolve the possible conflict for purposes of a bar grievance.
It is the opinion of this committee that the judge acted properly when the Assistant Prosecutor was ordered off the case. It seems obvious that your situation could have potentially run afoul of Canons 4, 5 and 9 and DR 4-101(B) and 5-101(A).
It is assumed, for purposes of this opinion, that by using the term "roommate" means some type of cohabitation arrangement, i.e., renting an apartment, etc., but having no marital or familial relationship. This committee has addressed the situation where adversaries to the same lawsuit have retained spouses. In CI-340 the committee opined:
"Your inquiry presents a serious question to practitioners, particularly in light of the increased number of spouses involved in the practice of law. The profession is continually subject to the scrutiny of individuals who are suspect if two attorneys have a cup of coffee together, much less live together. Unfortunately, such persons do not recognize the fierce competitive nature of most lawyers. This skepticism is heightened in the courtroom and can have an untold effect on a losing party. On the other hand, argument can be made that a client has an absolute right to select an attorney of his or her own choosing, so long as he or she is fully aware of the facts. A balance between this "seeming" evil and this right would appear warranted." Emphasis added.
The balance must be struck in favor of Canon 9 and held that it would be improper for spouses to represent clients on opposite sides of the same case. CI-65.
Canon 9 demands that the attorney avoid even the appearance of impropriety. Canon 5 demands that a lawyer should exercise independent professional judgment on behalf of a client. The public often cannot appreciate the "fierce competitive nature" of even the oldest attorney/friends. The appearance that is spoken of in Canon 9 is that which is created on the public and not on the other members of the profession. Accordingly, we must view what effect the present situation has on the public-at-large.
Obviously, close personal friendships between attorneys do no always create the appearance of impropriety and constant social contact does not form the basis for ethical rebuke. However, when domiciliary or business arrangements necessarily throw opposing counsel in constant personal contact with each, the public, and more importantly a losing party become legitimately suspicious. For this reason the Committee has repeatedly held that partners, associates or even attorneys who share office space may not represent opposing parties in the same suit. See CI-100 and CI-450.
As to issues 1 and 3, a court appointed defense attorney should not try a case against a member of a 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.
As to the 2 issue, this committee has held that a lawyer may represent a client in a matter that a partner represents the adversary party or an associate of a spouse's firm, provided written disclosure and consent is secured from the client. Moreover, a similar disclosure and consent must be obtained from the client of opposing counsel. CI-340. Again, the analogy between CI-340 and this case is appropriate. By removing the closed personal contact (i.e., the living arrangement) between the opposing counsel, the chance of impropriety is greatly lessened and may, it fact, become nonexistent. Accordingly, if the prosecutor/roommate withdraws from the case, the defense counsel/roommate may continue to represent the defendant provided the appropriate disclosures are made and consent of the parties is secured.