December 12, 1975
A lawyer may represent criminal defendants in the same county where the lawyer's spouse is employed as an assistant prosecuting attorney, provided that (a) the lawyers are not opposing counsel in any given case, (b) full written disclosure of the relationship is given and written consent received from the defendant and from the prosecuting attorney involved.
References: MCPR Canons 5, 7, 9; MCPR DR 5-101(A). CI-65 is superseded to the extent inconsistent with this opinion.
A lawyer asks whether it is ethical for the lawyer to defend a criminal case which is being prosecuted by the prosecuting attorney's office which employs the lawyer's spouse as an assistant prosecutor.
In CI-65 this Committee opined that it would be improper for a husband and wife to represent clients on the opposite sides of the same case. Therefore, in this inquiry we will assume that the spouse assistant prosecutor will not appear in the cases where the lawyer represents the defendant.
MCPR Canon 5 addresses conflicting interests affecting a lawyer's independent judgment on behalf of a client. MCPR Canon 5 does not, nor have we been able to find any published ethics opinion which does, expressly prohibit lawyers who are spouses from representing clients with opposing interests. MCPR DR 5-101(a) provides that without full disclosure and client consent:
". . . A lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own . . . personal interest."
MCPR Canon 7 provides that "a lawyer should represent a client zealously within the bounds of the law."
While neither Canon referenced prohibits the representation, MCPR Canon 9 which prohibits even the appearance of impropriety, cannot be ignored. The very relationships described create the appearance that professional judgment and the zeal with which an accused must be represented may be affected by personal interests. Therefore, a full written disclosure of the spousal relationship and employment with the prosecuting attorney's office should be made to the defendants and a written or "on the record" consent obtained from the defendants prior to undertaking the representation. The assistant prosecuting attorney spouse should also make a similar disclosure to the prosecuting attorney's office and obtain written consent.
Editor's Note: This opinion is superseded by R-3 and MRPC 1.8(i).