State Bar of Arizona Ethics Opinions

01-10: Conflict of Interest; Disqualification; Imputed Disqualification; Confidentiality; Social Relationships; Prosecutors; Public Defenders
10/2001

This Opinion discusses the conflict of interest guidelines for personal relationships between members of a Prosecutor's Office and members of the Legal Defender's Office. [ERs 1.7(b), 1.8(i), 1.10]

FACTS[1]

 

A County Legal Defender supervises the attorneys in the County Legal Defender's Office and seeks ethical guidelines where an attorney in his office is living with (and likely to become married to) a Deputy County Attorney.  The county in question is quite small, and the number of attorneys in both the Legal Defender's Office and the County Attorney's Office is relatively small.

 

QUESTION PRESENTED

 

What are the ethical guidelines that govern the situation where an attorney in the County Legal Defender's Office is living with (or the spouse of) an attorney in the County Attorney's Office?

 

RELEVANT ETHICAL RULES

 

ER 1.1.            Competence

 

A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

 

ER 1.6.            Confidentiality of Information

 

(a)            A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b), (c) and (d) or ER 3.3(a)(2).

 

(b)            A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

 

(c)            A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

 

(d)            A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

 

ER 1.7.            Conflict of Interest:  General Rule

 

* * * *

(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 interest, 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.

 

ER 1.8.            Conflict of Interest:  Prohibited Transactions

 

* * * *

 

(i)        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 who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

 

* * * *


ER 1.10.            Imputed Disqualification:  General Rule

 

(a)       While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.

 

* * * *

 

ER 1.15.            Safekeeping Property

 

(a)       A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property.  Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person.  Other property shall be identified as such and appropriately safeguarded.  Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

 

(b)            Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.  Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

 

(c)            When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests.  If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

 

RELEVANT ARIZONA ETHICS OPINIONS

 

Ariz. Ops. 71-27, 73-6, 77-13, 77-19, 79-26, 82-15

 

OPINION

 

The rules governing married attorneys have dramatically changed over the past thirty years, with most opinions, in Arizona and elsewhere in the United States, noting that overly-rigid ethical constraints on married attorneys created unfair impediments to employment when women entered the legal profession in increasing numbers.  The policy of preventing unfair impediments to married attorneys must yield to the requirements of providing effective counsel to clients and protecting client confidences.

 

A look at the historical Arizona Opinions on this issue (whether in the criminal or civil setting) is helpful to understanding the progression of the issues and resulting policies, some of which will underlie our present Opinion.  This section of the Opinion, therefore, will first chronicle the Arizona Opinions from 1971 through 1982, and then address the pending issue under the current Ethical Rules. 

 

A.          Historical Perspective and the Disciplinary Rules.

 

Analysis of this and similar issues has come a long way since 1971, when the State Bar of Arizona Committee on the Rules of Professional Conduct, (the "Committee") issued a formal opinion stating that where spouse A is a prosecutor and spouse B a criminal defense attorney in private practice, no lawyer in the firm of spouse B could represent any criminal defendant where the prosecutor was from the office in which A was employed.  Ariz. Op. 71-27.  That 1971 Opinion rested on a concept subsequently termed "double application of infectious disqualification," which meant every attorney in B's firm, by B's employment, was disqualified from being adverse to A, and (here's the double), every prosecutor in A's office, by A's employment, was disqualified from being adverse to B (and everyone in B's firm).  A reconsideration of the Opinion followed in 1973 (Ariz. Op. 73-6), which was followed still by related requests in 1977 (Ariz. Op. 77-13) and 1979 (Ariz. Op. 79-26), all of which were subsequently modified or overruled, in part or in full, in 1982 (Ariz. Op. 82-15).  A summary of the conclusions from each Opinion follows, and the Committee's discussion regarding waiver of conflicts and whether the situation must be disclosed to the client(s) is noted where applicable.2

 

In Ariz. Op. 73-6, the Committee modified the holding from Ariz. Op. 71-27, and answered four separate questions as follows:  (i) it was ethically impermissible for one spouse to defend a defendant where the other spouse was the prosecuting attorney in the case; (ii) it was ethically impermissible for one spouse to defend a defendant where an attorney in the other spouse's (government) office was prosecuting the case, and disclosure and client consent could not cure the problem; (iii) it was ethically impermissible for an attorney in a private law firm to defend a defendant where the spouse of a partner of the attorney was the prosecutor and disclosure and client consent could not cure the problem; and (iv) where a co-worker of the prosecutor-spouse is prosecuting a defendant (and the prosecutor is effectively walled off), it may be permissible in certain situations for a co-worker of the defense attorney-spouse to defend the defendant (where the defense attorney-spouse is effectively walled off).

 

Notably, the Committee explained in Ariz. Op. 73-6:

 

We are of the opinion that the risk of an appearance of impropriety, destructive of the "complete confidence of the thinking public" in our system of administering criminal justice, is clearly present in a situation where one of the lawyer-spouses is defending an accused person who is being prosecuted by a fellow member of the prosecutorial office of which the other lawyer-spouse is then a member.  This, we feel, is true irrespective of the probability that, in many cases, the prosecutor-spouse would neither possess any confidential information concerning the defense nor communicate concerning the case with the colleague actively prosecuting it.

 

Ariz. Op. 73-6 at 12.

 

In Ariz. Op. 73-6, the Committee confirmed that consent to the situation from prosecutor-spouse's client (the State or the People) cannot be obtained, citing ABA Formal Ops. 16, 34, 77, and 296.

 

In Ariz. Op. 77-13, the Committee addressed the situation where one spouse worked in-house for OSHA, and the other spouse was in private practice.  The issue was hotly debated and the result was the issuance of a "Majority Opinion" and a "Minority Opinion," where the minority was only slightly less than one-half of the Committee.  The Majority Opinion provided that the private practice spouse could appear and defend clients in OSHA proceedings if:  (i) the in-house OSHA spouse was effectively walled off; (ii) the client was informed of the situation and consented to it; and (iii) neither attorney was subject to undue influence as a result of the marital relationship.

 

In Ariz. Op. 77-19, the Committee addressed the situation where two associates from two law firms were married and the firms represented adverse parties in civil litigation.  The Committee did not apply the "double application of infectious disqualification rule" but concluded that:  (i) both firms were required to fully disclose the situation to their clients and obtain consent to the situation by their clients and (ii) both associates were required to be screened.

 

In Ariz. Op. 79-26, the Committee recognized a conflict between Ariz. Ops. 73-6 and 77-13, and addressed a situation where spouse A was in private practice engaged in representing juveniles in delinquency proceedings, and spouse B was a Deputy County Attorney.  The Committee concluded that spouse A could represent clients in juvenile delinquency proceedings because the division of the County Attorney's Office in which B was employed was entirely separate from the juvenile division (e.g., separate buildings, no cross-access to case files, etc.).  The Committee specifically declined to opine on the situation where the physical and personnel distinctions within the County Attorney's Office might be different.  Notably, the Committee reiterated its conclusion from Ariz. Op. 77-13 as follows:

 

This Committee cannot and will not assume that lawyers married to one another will make decisions which affect their clients with any lesser degree of honor and integrity than would any other lawyer.  We do not presume that the marital relationship per se causes an otherwise ethical lawyer to abandon his or her

professional duties to observe and comply with all of the Disciplinary Rules and Ethical Considerations of our profession.

 

Ariz. Op. 77-13 at 4.

 

Finally, in Ariz. Op. 82-15, the Committee reconsidered the prior holdings (specifically including 77-13 and 77-9) and specifically overruled all prior Opinions on infectious disqualification with respect to spouses.  The Committee found that there was no per se ban on spouses representing adverse parties, with informed consent by the clients.  The Committee confirmed that where one spouse represents the People (e.g., a prosecutor), informed consent was not possible, and in such situations the potential for conflict had to be examined on a case-by-case basis.  The Committee found that if there existed a reasonable probability for conflict, the government-spouse must decline the representation.

 

B.            The Ethical Rules ("ERs") of 1985.

 

Following the series of Opinions described above, the Arizona Rules of Professional Conduct became effective in February 1985, and ER 1.8(i) provides that, "[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 who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."

 

There are two levels of analysis here.  The first concerns whether the two attorneys have a non-waivable conflict, and, if not, whether the conflict can be imputed to other members of the attorneys' offices.  The second concerns whether the marital (or dating) relationship could affect the independent professional judgment of the spouses, or other members of their firms, and whether the marital relationship could impact the obligations concerning client confidentiality and safeguarding of client property.  We now address each issue in turn, and begin by stating that there are no formal Arizona Opinions addressing the questions under the Ethical Rules but the reasoning of the prior Opinions and the Disciplinary Rules is instructive.

 

We begin by citing a noted treatise on legal ethics, G. Hazard, Jr. and W. Hodes, The Law of Lawyering, A Handbook on The Model Rules of Professional Conduct §1.8:1001, at 283 (2d ed. 1991).  This treatise explains:

 

Substantial risks threaten the quality of the representation in cases where the lawyers on opposite sides of a dispute are related to each other by blood or marriage.  One risk is that closely related lawyers, especially if living in the same household, may unwittingly reveal the confidences of their adverse clients.  (A message scribbled on a pad by the telephone might be enough to compromise confidentiality, for example.)  Another danger is that while the intense personal relationship of the lawyers makes for marvelous theatre, it may result in emotional interference with the detached professionalism required by Rule 1.1 (competence) and Rule 1.7(b) (material limitations on the representation).

 

As for the first level of the inquiry, the Comment to ER 1.8 clarifies that "[t]he disqualification stated in ER 1.8(i) is personal and is not imputed to members of firms with whom the lawyers are associated."  This Comment is consistent with ER 1.10(a), which provides for imputed disqualification with respect to conflicts under ERs 1.7, 1.8(c), 1.9 or 2.2, but specifically does not include conflicts under ER 1.8(i).  Thus, spouses have a conflict if they are opposite each other in the same case, but the conflict can be waived with the clients' informed consent as long as the spouses believe that their relationship will not put any material limitations on their representation.3  The conflict is not imputed to the other members of the spouses' offices.  In the setting where one spouse is prosecutor, and the client is therefore the People, the question remains whether a waiver is possible under ER 1.8 on behalf of the People.  The answer to this question will depend upon the applicable law of the governmental agency or municipality at issue.  For example, some counties and states have specific legal authority allowing County Attorneys or the Attorney General to waive conflicts.  This is a legal question beyond the scope of the jurisdiction of the Committee and the result will likely vary depending on the agency involved.4

 

The second level of inquiry involves ER 1.7(b) (independent judgment), ER 1.6 (confidentiality) and ER 1.15 (safekeeping property).  Due to the professional or social relationships between the cohabiting (or married) attorneys and other members of their offices or firms, it is possible that a conflict could exist under ER 1.7(b), or that the duty to keep client confidences could be jeopardized.  Thus, for each case between the agencies (or firms) involved, the attorneys should consider their own personal/social friendship with the other spouse, the size of the office, the likelihood that privileged information could be shared or revealed, any particular property that the attorney(s) must safeguard, and related issues. 

 

Precautions may be appropriate in certain cases, and may include "screening" off one spouse.5  Procedures for screening-off the spouse may include advising all members of the office to refrain from discussing the case in his or her presence, marking the files appropriately, and other appropriate measures, depending upon the inner-workings of the office.

 

With regard to whether the client must be advised of these potential risks (in the absence of a direct conflict, which would always require disclosure), we are guided by Ariz. Op. 82-15, in which the Committee concluded that disclosure of the marital relationship was not mandated in all situations, but was dependent on each factual situation.  We explained in Ariz. Op. 82-15:

 

It must be recognized that the relationship of husband and wife is so close that the possibility of an inadvertent breach of a confidence or the unavoidable receipt of information concerning the client by the spouse other than the one who represents the client (for example, information contained in a telephoned message left for the lawyer at home) is substantial.  Because of the closeness of the husband-and-wife relationship, a lawyer who is married to another lawyer must be particularly careful to observe the suggestions and requirements of . . . [the ethical considerations and disciplinary rules].

 

* * * *

 

Based upon our conclusion above, the Committee also finds that it is a matter of individual judgment, guided, of course, by the Ethical Considerations and Disciplinary Rules of the Code of Professional Responsibility, whether a lawyer-spouse or his partners or associates must disclose the marital relationship to a client when a partner or associate of the other spouse represents an adverse interest.

 

Ariz. Op. 82-15 at 6.

 

We note again that disclosure is specifically not governed by ER 1.8 if the spouses are not directly adverse to each other, and that ER 1.8 is a personal prohibition that is not imputed to members of the spouse's respective offices.  Applying the Disciplinary Rules (repealed in Arizona since 1985), the Supreme Court of Ohio has addressed this issue in the context of a county prosecutor married to a private practice defense attorney and concluded that "[w]here neither spouse is involved in the representation, no disclosure or consent is required."

 

We continue to believe in the above reasoning from Ariz. Op. 82-15 and affirm it here - disclosure is not mandatory where neither spouse is involved in the case, and should be determined on a case-by-case basis.  Factors affecting this determination may include the number of attorneys in the office, the physical setting, and the allocation of duties and responsibilities.6

 

C.          Cohabitation vs. Marriage.

 

The facts presented in the present inquiry concern a couple that lives together and contemplates marriage.  We find no Arizona Opinions addressing any distinction between attorneys living together and married attorneys, in the context of conflicts of interest or imputed disqualification.  The State Bar of Michigan has considered precisely this issue, and concluded that "[w]here lawyers are cohabiting, or a lawyer and a judge are cohabiting, the rules regarding married lawyers should be adhered to because the cohabitation relationship is akin in terms of intimacy, confidentiality, and shared interest to the marital relationship."  Similarly, Hazard and Hodes provides that although Rule 1.8(i) specifically applies only to the close relationships listed (including marriage but not cohabiting), "all of the policy reasons for the rule are implicated" in a cohabiting situation.  The Law of Lawyering, Id.

 

We agree with the State Bar of Michigan on this point and adopt the above quoted language here.

 

CONCLUSION

 

For all of the reasons set forth above, this Committee concludes as follows: 

 

  1. An attorney for the Legal Defender's Office that is cohabiting with an attorney from the County Attorney's Office may work opposite his or her partner on the same case only if:  (i) both attorneys believe that the representation will not be materially limited by their relationship and (ii) both obtain informed consent by the clients.  Whether the County Attorney can consent for the People is a legal question and will depend on the law of the particular county in question.  The conflict created by the cohabiting relationship is not imputed to other members of the offices.

 

  1. Whether to disclose the cohabiting relationship (or marital relationship, if applicable) where neither attorney, or only one of the attorneys, is involved in a given case is dependent upon the particular facts and circumstances of each case.

 

  1. The attorneys in each office should determine on a case-by-case basis whether the cohabiting relationship (or marital relationship, if applicable) may result in a limitation on the representation; if the conclusion on any given case is in the affirmative, there is a waivable conflict under ER 1.7.

 

  1. The attorneys in each office should determine on a case-by-case basis whether the cohabiting relationship (or marital relationship, if applicable) creates the need for additional precautions, such as screening-off an attorney, in order to prevent the inadvertent disclosure of privileged information or otherwise safeguard the client's property.


[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2001

2 Copies of these pre-1985 Opinions can be obtained from the State Bar of Arizona.

3 Informed consent by a client under ER 1.7(b)(2) includes the requirement that the attorney consult with the client about the issue and that the client consents after such consultation.

4 A California Opinion from 1984 is squarely on point, addressing precisely the issue before the Committee, but under the California Rules.  CA Op. 1984-83.  In that Opinion, the California Committee found that the public defender spouse could represent an accused being prosecuted by the district attorney spouse where there was informed, written consent by the defendant, and informed consent by the District Attorney.  The California Committee relied upon a 1978 Opinion by the California Attorney General concluding that a government body (a municipality) could consent through its council representatives.

5 While "walling off" attorneys cannot cure an actual conflict and is not an acceptable alternative to informed consent for conflicts, see Towne Dev. of Chandler, Inc. v. Superior Court, 173 Ariz. 364, 842 P.2d 1377 (Ct. App. 1993), it may be an acceptable approach in attempting to prevent inadvertent disclosure of privileged information, and safeguarding client property.

6 One of many possible examples in the private firm setting may be where one spouse stands to benefit greatly from a contingent fee or profit sharing arrangement - in such a situation, a client might be more likely to expect to be told of the relationship.