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Ethics Opinion

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RI-242

August 22, 1995

SYLLABUS

    Where a criminal defense lawyer's spouse is expected to testify in a criminal proceeding on behalf of the prosecution, the lawyer is prohibited from serving as defense counsel unless the lawyer determines the representation will not be materially limited and the client consents after consultation.

    A lawyer's disqualification under these circumstances has the effect of disqualifying all the associates in a firm from representing the client.

    A client may not waive a firm's imputed disqualification where the firm is also independently disqualified because of duties owed to the disqualified member, other persons, or the law firm's own interests.

    References: MRPC 1.7(b), 1.10(a) and (d); RI-228, RI-233.

TEXT

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, beginning at the initial stage of the prosecution, may include counseling crime victims, discussing the charges on which the victim may give input, referring the victim for further counseling and providing further information regarding restraining orders and case scheduling matters. On occasion, the spouse may be asked to testify in the criminal proceedings for the prosecution.

As a matter of policy, the prosecutor does not assign the spouse to victims or witnesses involved in cases in which the lawyer's firm has filed an appearance. Nevertheless, much of the spouse's work may begin before an appearance is filed by defense counsel, so any potential conflict may arise even before the lawyer's appearance is filed and such concerns are heightened where the spouse is expected to testify in the criminal proceedings.

If the spouse becomes a witness in the matter requiring cross examination by the lawyer, RI-228 opines that the threshold in MRPC 1.7(b)(1) could not be met and the lawyer would be required to withdraw. Further, if the lawyer is disqualified under MRPC 1.7(b), all members of the lawyer's firm would be vicariously disqualified under MRPC 1.10(a).

In view of RI-228, the inquirer questions whether or not a client may independently waive a firm's imputed disqualification under MRPC 1.10(d), where the client has not consented to the individual lawyer's representation.

The inquiry concerning waiver of imputed disqualification is premature. The initial analysis should be whether the other lawyers in the firm are disqualified, not only vicariously through MRPC 1.10, but because of MRPC 1.7 as it applies to them personally. MRPC 1.7(b) states:

    "(b) 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:

      "(1) the lawyer reasonably believes the representation will not be adversely affected; and

      "(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

In such a situation, it is certainly possible that representation by another member of the firm would be materially limited by responsibilities to their colleague lawyer or by their own interests, including their sense of friendship, loyalty or deference to their associate, who is married to the prosecution witness. To the extent that such concerns would materially limit the representation of the client, the firm members are disqualified on their own merit under MRPC 1.7, unless MRPC 1.7(b)(1) and (2) are met. If either condition under MRPC 1.7(b)(1) and (2) is not met, analysis under MRPC 1.10(d) is not required.

Under the facts provided, the spouse would be examined regarding victim counseling and victim testimony preparation. In a criminal case, the victim's perspective can be very influential with a jury and very damaging to the defendant. Examination of those aspects may be a key portion of the prosecution's case, and will impact sentencing in the event of a guilty verdict. We find it difficult to believe that a lawyer's aggressive cross-examination of a colleague's spouse would not affect the lawyer's relationship to the colleague and the lawyer's duties to the law firm. If the lawyer fails to aggressively approach the witness, the lawyer has failed to perform in the best interests of the client. This analysis might change if the spouse's testimony merely clarifies some specific fact, or relates solely to a side or subordinate issue in a case.

Therefore, under the facts provided in RI-228 and in this inquiry, MRPC 1.10(d) would not be triggered, because other members of the lawyer spouse's firm would have their own conflicts of interest under MRPC 1.7.

Such a conclusion is entirely consistent with RI-233. In that opinion, a criminal defense lawyer informed the prosecutor's office on the morning of trial that the defense intended to call a nonlawyer employee of the prosecutor's office as a character witness for the defendant. The key factor in this situation is that the testimony would be in the nature of a character reference. In ruling that the prosecutor's office was not per se disqualified, RI-233 opined that such a situation "does not disclose anything which could lead to the conclusion that representation by the assistant prosecuting attorney of the people of the state of Michigan would be limited by the assistant prosecuting attorney's responsibilities to another client or to any other person, or by the assistant prosecuting attorney's own interests." In rendering such an opinion, the term "lawyer's own interests" was narrowly interpreted to not include preserving any relationship with the lawyer's co-workers and to mean primarily financial or other business related interests of the lawyer.

 
     

 

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