State Bar of Arizona Ethics Opinions
01-12: Conflict of Interest; Criminal Representation; Public Defenders; Disqualification; Social Relationships
This Opinion discusses the possible conflicts of interest when a public defender and law enforcement officer have a personal relationship.
An Assistant Public Defender ("APD") is involved in a romantic relationship with a law enforcement officer (the "Officer"). The Officer has been an investigating, arresting officer and/or witness in several cases involving the clients of the Public Defender's Office. The APD and Officer are in job assignments where they would ordinarily share information about their cases with their respective co-workers. The supervisor of the APD seeks guidance on the ethical guidelines that apply to this situation.
What are the ethical guidelines that govern the situation where an Assistant Public Defender is involved in a romantic relationship with a law enforcement officer who is often an arresting or investigating officer in cases involving the clients of the Public Defender's Office?
RELEVANT ETHICAL RULES
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 paragraphs (b), (c) and (d) or ER 3.3(a)(2).
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ER 1.7. Conflict of Interest: General Rule
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(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 1.10. 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.
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RELEVANT ARIZONA ETHICS OPINIONS
Ariz. Ops. 82-15, 2001-10
In Ariz. Op. 2001-10, the Committee considered the situation where two attorneys are romantically involved, and one works as a prosecutor while the other a public defender. The issue presently before the Committee is different, as it involves an attorney and a law enforcement officer, not two attorneys. The law enforcement officer is clearly not bound by the Rules of Professional Conduct governing lawyers. Still, some of the analysis regarding the potential for conflict for the involved attorney is similar to that contained in Ariz. Op. 2001-10.
There are no prior Arizona Opinions directly on point, and there is not an Ethical Rule that directly addresses the situation where a witness in a case is romantically involved with one of the lawyers. The issue falls under the general conflict of interest rule in ER 1.7(b) and the general duty to maintain client confidences under ER 1.6. Three related levels of inquiry are appropriate: First, does ER 1.7 preclude representation by the APD or any other member of the Public Defender's Office? Second, what special considerations, if any, are appropriate under ER 1.6 concerning client confidences? Third, when, if ever, is client disclosure and consent required?
Conflicts under ER 1.7 and Imputation under ER 1.10
Under ER 1.7(b), the relevant inquiry is whether the dating relationship could materially limit the representation of the client. If so, the APD must determine whether the romantic relationship would adversely affect the representation. If it would, there is a non-waivable conflict; if it would not, disclosure and consent by the client are possible under ER 1.7(b). It is not difficult to imagine a situation where the Officer takes the stand to testify against the accused, followed by cross-examination of the APD, followed by re-direct examination in which the prosecutor uses the romantic relationship to either bolster the Officer's testimony or weaken the cross-examination. In cases where the Officer is a testifying witness, and the APD is counsel for the accused, the potential for conflict under ER 1.7(b) will be very great. Indeed, the Committee believes that in most, if not all, situations where the APD is defending and the Officer is anticipated to be a testifying witness, the representation likely would be adversely affected by the romantic relationship, and a non-waivable conflict would exist. Because determination of this issue turns on the facts of any given case and relationship, however, the Committee is not adopting a bright-line rule on this point. Factors to consider in determining whether the representation would be adversely affected by the relationship include: 1) the nature and duration of the romantic relationship; 2) the nature of the charges at issue; and 3) the nature of the anticipated testimony of the Officer, including the materiality of the issue to which the Officer is expected to testify, and whether the anticipated testimony is disputed.
In cases involving the Officer and in which another member of the Public Defender's Office is involved, the potential for conflict under ER 1.7(b) will be far less than when the APD is involved, but the potential is still real. Thus, in each case involving the Officer, the Public Defender's Office must evaluate whether the romantic relationship between the Officer and the APD will materially limit the defense of the client.
Whether a conflict under 1.7(b) resulting from the romantic relationship should be imputed to the entire Public Defender's Office under ER 1.10(a) raises some interesting issues. Arizona courts arguably have been inconsistent in addressing the application of ER 1.10 to public defender offices. Compare Okeani v. Superior Court, 178 Ariz. 180, 182, 871 P.2d 727 (App. 1994) with State v. Sustaita, 183 Ariz. 240, 243, n. 2, 902 P.2d 1344 (App. 1995). For the present inquiry, the Committee concludes that a conflict created by a "lawyer's own interests" under ER 1.7(b) should not be imputed to the entire Public Defender's Office under ER 1.10. To find such an imputation could arguably lead to absurd results where the "lawyer's own interests" are the result of personal, religious, social, political, or familial issues. For example, if one public defender determines that her representation of a certain defendant accused of a felony hate crime would be materially limited by her attendance at the place of worship at issue, that potential conflict under ER 1.7 is not a conflict that should be imputed under ER 1.10. Likewise, if one public defender determines that his representation of a defendant would be materially limited because the defendant is accused of sexually assaulting the APD's relative, that is not a conflict that should be imputed under ER 1.10. These are but two examples that support our conclusion that if the conflict under ER 1.7 is a personal conflict relating not to another client but to the lawyer's personal "own interests" it should not be imputed to others.
Thus, in this Opinion the Committee need not settle the apparent split of authority in Arizona over whether ER 1.10 applies as a legal matter to the Public Defender's Office. Rather, the Committee concludes that irrespective of its application, a conflict under ER 1.7(b) arising from a lawyer's personal "own interests"—such as a dating relationship with a law enforcement officer—is not the type of conflict that should be imputed to an entire Public Defender's Office.
The Duty to Maintain Client Confidences under ER 1.6
With regard to the duty to maintain client confidences pursuant to ER 1.6, for each case in which the Officer is involved, the Public Defender's Office should consider the likelihood that confidential information could be inadvertently shared or revealed. According to the facts presented to the Committee, the APD is in a job assignment where he or she would ordinarily share information about cases with co-workers. Inadvertent disclosure to a spouse or significant other where married lawyers are opposite one another in the same case was addressed in Ariz. Op. 82-15 (prior to enactment of the Ethical Rules), in which the Committee explained:
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.
Ariz. Op. 82-15 at 6.
The reasoning of Ariz. Op. 82-15 applies here. In a romantic relationship, the possibility of inadvertent disclosure is likewise great. In some cases, to ensure client confidences are preserved, the Public Defender's Office may decide to take precautions to prevent the inadvertent disclosure of information to the Officer. Precautions may include "screening" off the APD in certain cases. Procedures for screening off the APD 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. We create no bright-line rule on whether such procedures are necessary in any given case, and instead believe that their application will likely vary depending on the situation.
Whether Disclosure and Consent Are Required
Finally, with regard to whether the client must be advised of the dating relationship with the Officer (in the absence of a direct conflict, which would always require disclosure), we are guided by prior Ariz. Op. 82-15, which provides:
[T]he 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 recently applied such reasoning in Ariz. Op. 2001-10. The Committee concludes that disclosure is not mandatory where neither the Officer nor the APD is involved in the case. If the Officer and the APD are both involved in the case, the Committee concludes that disclosure is necessary. See discussion of 1.7(b) above. We find it unlikely, but still possible, that disclosure would be required in a case in which the APD is not involved. Other than the mandatory disclosure where the APD and Officer are both involved, the decision of whether to disclose should be determined on a case-by-case basis. The following factors should guide the APD (and the Public Defender's Office) in determining whether and when disclosure is warranted: 1) the number of attorneys in the office; 2) the physical setting; 3) the allocation of duties and responsibilities; 4) the likelihood of inadvertent disclosure of client confidences; 5) the seriousness of the romantic relationship; and 6) the degree of involvement by the Officer (e.g. investigating officer vs. arresting officer vs. witness). If the APD concludes that disclosure is appropriate, subject to the discussion above concerning a non-waivable conflict, continued representation of the client can occur if the client consents under ER 1.7(b), and the lawyer reasonably believes the representation will not be adversely affected.
When an APD is romantically involved with an Officer who is regularly involved in investigating and arresting clients of the Public Defender's Office, the following rules and guidelines exist:
- Where the APD and the Officer are both involved in a case, and the Officer is expected to testify, in most, if not all, cases a non-waivable conflict will exist. Because this is a factual determination, the Committee declines to adopt a bright-line rule, but provides the following factors that should be considered in determining whether the conflict is waivable (with disclosure and consent) under ER 1.7(b): 1) the nature and duration of the romantic relationship; 2) the nature of the charges at issue; and 3) the nature of the anticipated testimony of the Officer, including the materiality of the issue to which the Officer is expected to testify, and whether the anticipated testimony is disputed.
- Where the APD and Officer are both involved in a case, regardless of whether the Officer is expected to testify, disclosure of the romantic relationship and consent by the client are required under ER 1.7(b).
- In all other cases, the APD and the Public Defender's Office must determine on a case-by-cases basis, whether: 1) the romantic relationship places a material limitation on the representation of the client and therefore creates a conflict under ER 1.7(b) for the APD; 2) procedures should be put in place to prevent the inadvertent disclosure of confidential client information to the Officer in violation of ER 1.6; and 3) the client should be informed of the romantic relationship pursuant to ER 1.7 and offered the option of either: a) consenting to the continued representation; or b) requesting the appointment of another public defender. There are no bright-line rules for answering each of these levels of inquiry, but provided in this Opinion are guidelines to help the APD and the Public Defender's Office in answering each question on a case-by-case basis.
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.