March 6, 1995
A lawyer whose spouse is employed by the prosecutor's office is not per se prohibited from representing a criminal defendant. The client must consent to the representation after consultation regarding the relationship, and, if consent is given, the lawyer must continue to evaluate for conflicts of interest throughout the representation.
References: MRPC 1.4(b) 1.7(b)(1) and (2) 1.8(i), 1.10(a); R-3.
A lawyer practicing with a private firm which handles criminal trial defense work has a spouse who is employed by the local prosecutor as a victim/witness coordinator. The spouse's functions, brought to bear at the inception of a prosecution, may include counselling the victims of crimes against their persons, discussing the charges on which the victim is offered an opportunity for input, referring the victim for socio-psychological counselling, and providing information concerning restraining orders, the anticipated progress and calendar of proceedings, and other support information. The law firm has a policy whereby the lawyer and prospective client, prior to retention, discuss the spousal relationship. A waiver form has been developed as to which the Committee's input is sought.
The facts state that the prosecutor does not assign the spouse to victims or witnesses involved in cases in which the inquirer's firm has filed an appearance. However, the inquiry is not thereby moot, because it appears much of the work of a victim/witness coordinator is performed before formal charges are brought, or at least prior to the point at which the potential accused may realize the need for or have opportunity to retain counsel. Hence, the conflict, if any, arising from the spousal relationship may arise before the firm's appearance is filed.
The first issue to be addressed is whether the firm may accept representations in cases involving victims or witnesses who may have already been counselled by the spouse coordinator.
MRPC 1.8(i) states the policy that even if the spouses were opposing counsel on the same matter, disqualification would not be automatically required. MRPC 1.8(i) states:
"A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."
If the spouse were also a lawyer, MRPC 1.8(i) would apply, and require the firm to discuss with the potential client all relevant ramifications of the relationship prior to undertaking the representation. R-3 has details on how to set about this task. See also, MRPC 1.4(b). The important points are that while spousal relationships do not disqualify lawyers per se from undertaking or continuing a representation, they do raise legitimate concerns and it is vital that the client make an informed decision whether to establish or continue a lawyer-client relationship in terms of the particular facts.
In this inquiry, the spouse employed by the prosecutor's office is employed in a nonlawyer position, and in that position could never be in the sensitive position of opposing advocate in a matter handled by the law firm. Nevertheless, while it would not seem facially unreasonable for the lawyer or firm to undertake a representation, there must be an evaluation of all the particular circumstances on a case-by-case basis. MRPC 1.7(b)(1). If that threshold is surmounted, equivalent advice and information comparable to the required by MRPC 1.8(i) appears to be required by MRPC 1.7(b)(2) in this context. Lawyers are required to evaluate the existence of conflicts of interest throughout the representation, not just at the outset. If the spouse becomes a witness in the matter, for example, requiring cross-examination by the lawyer, the threshold in MRPC 1.7(b)(1) could not be met and the lawyer would be required to withdraw. If the lawyer is disqualified under MRPC 1.7(b), all members of the lawyer's firm would be imputedly disqualified under MRPC 1.10(a).
In this respect, the operative language of the "Disclosure" form suggests only that the client has been counselled that no advantage will accrue by retaining a firm, one of whose members has a spouse in the prosecutor's employ.
If this is the extent of the counseling afforded the client on the spousal issue, the "Disclosure" form proffered for analysis by the inquirer's firm is plainly deficient and does not comport with MRPC 1.4(b).
The disclosure form itself is in any event not controlling. What constitutes adequate disclosure is fact specific and could only be evaluated on a case-by-case basis, so any effort to satisfy the disclosure obligations imposed by ethics rules by use of a form is almost certain to prove unsatisfactory. It is the counselling and discussion with the client underlying the execution of any such form that would serve as the touchstone for determining whether the necessary disclosure have been adequately made. While the form should certainly reflect that both advantages and disadvantages have been covered, assuming one is used, it cannot serve as a panacea to obviate the necessity for compliance with the Rules in fact.