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Obligations of criminal defense attorneys based on a familial relationship with a prosecuting attorney.

You request an opinion regarding how the Maryland Rules of Professional Conduct affect your practice as a criminal defense lawyer when your nephew marries a prosecutor in your community. Your specific question describes a factual scenario in which you and your spouse practice law in the field of criminal defense and a second‐degree relative (i.e., aunt, uncle, niece, nephew) has become engaged to a local prosecutor and also intends to relocate to the area and prosecute criminal defendants in the community in which you defend criminal defendants. You ask if this family relationship creates a conflict under Rule 1.7. If these relationships amount to a conflict, may the conflict be waived? You direct our attention to a prior opinion in which the Committee discussed the conflict between spouses where one was employed as a prosecutor and the other as a criminal defense attorney and concluded that a conflict exists; the conflict could be waived by the clients; and that the conflict is personal meaning other members of the firm would not be automatically disqualified, only the conflicted attorneys. Ethics Docket 2001‐20.

The Committee in that opinion referred to previous opinions in Ethics Dockets 1988‐02, 1990‐03 and 1995‐42 which discuss similar issues of family relationships between lawyers. In those opinions the relationships involved questions about spouses or siblings. Those relationships differ from those of aunt, uncle, nephew or niece which are generally not as close.

The applicable Rule of Professional Conduct, 19‐301.7 (Rule 1.7) addresses personal conflicts in generally, providing:

(a) Except as provided in section (b) of this Rule, an attorney shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney’s responsibilities to another client, a former client or a third person or by a personal interest of the attorney. [Italics supplied.]

(b) Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if:

(1) the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

The Comments to the Rule clarify the intent of the Rule by providing in Comment 11 that relationships of blood or marriage are “personal interest’ conflicts as prohibited by the Rule:

[11] When attorneys representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the attorney’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the attorneys before the attorney agrees to undertake the representation. Thus, an attorney related to another attorney, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that attorney is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the attorneys are associated. See Rule 19‐301.10 (1.10).

Where a familial relationship exists, the Rule applies, but there may be situations where the normal family relationship has been severed and in those cases attorneys may conclude that they do not have a “personal interest” that creates a conflict. Similarly, with some families nieces and nephews can be very close to their aunts and uncles and cousins can be almost like siblings, while in others the relationships are distant. The Rule does not seek to create a specific formula for determining when a personal interest exists that creates a conflict under the Rule, but instead relies upon the attorneys involved to make that determination for themselves.

Earlier opinions of the Committee under the prior Rules found conflicts in familial relationships based on the “appearance of impropriety” standard.(1) With that standard having been abandoned, the Rules leave it to the attorney to determine when a conflict exists and to address potential conflicts through introspection. Nevertheless, prudence, if not the Rules, dictate that an attorney advise clients of any familial relationships with opposing attorneys and describe whether the attorney believes a conflict exists or does not exist and where a conflict exists; the attorney must gain the informed consent (2) of the client to a continued representation.

In the context of a criminal prosecutor, this Committee previously concluded that age old prohibitions against the public consenting to conflicts no longer exist as noted in our Opinion 2001‐20, but recommended that the prosecuting attorney should seek guidance from the Attorney General before handling matters in which relatives are the opposing counsel as occurred when the Committee issued opinion 1995‐42.3 Similarly, a criminal defense attorney must be cautious to protect the rights of clients, but also, must act as an officer of the court under Rule 8.4(d) to ensure that the defendant fully understands the nature of the familial relationship that exists between the attorney and prosecutor and competently waives any conflict in writing by giving the client’s informed consent as required by the
Rules. Rule 1.7(b)(4).

In our Opinion 2003‐14, the Committee discusses some of the considerations that can go into determining whether a conflict exists between spouses who work on opposite sides of the criminal law. Without repeating the full text of that opinion, the Committee noted:

“Loyalty to your client may also be impaired by your personal relationship. There are endless scenarios that can be envisioned in which your relationship could affect the course of action chosen. For example, if the appropriate course of action, as a defense attorney, includes attacking the credibility of your spouse’s law enforcement agency as a whole, you may be dissuaded from this tactic to avoid offending your spouse or out of fear that such conduct could jeopardize his employment and your combined income. A lawyer’s own interests cannot be permitted to have an adverse effect on the client’s representation.”

Similarly, the opinion notes the grave repercussions that can arise from a conflict in a criminal case and cautions the attorney to review whether a conflict exists on a case by case basis.

In our Opinion 2001‐20, we reaffirmed the conclusion in the Comments that the conflicts based on familial relationships are personal to the lawyers involved and we confirmed that under the Rule those relationships do not act to impute conflicts to other members of the firm. The first paragraph of Rule 19‐301.10 (Rule 1.10) provides:

(a) While attorneys 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 Rules 19‐301.7 (1.7) or 19‐301.9 (1.9), unless the prohibition is based on a personal interest of the prohibited attorney and does not present a significant risk of materially limiting the representation of the client by the remaining attorneys in the firm. [Italics supplied.]

Thus, where the conflict is a personal one, other members of the firm do not have an imputed conflict of interest so long as the conflict does not present a risk that their representation of the client would be materially limited. For that reason, your relationship and that of your spouse to a prosecutor with whom you have familial ties will not disqualify other members of your firm from representing a criminal defendant even where you determine you have a conflict under Rule 1.7 so long as those attorneys conclude that there is no significant risk that their representation will be materially limited by the conflicting relationship.

The Committee hopes it has addressed your inquiry and thanks you for your interest. Our opinions are available online at www.msba.org.

(1) For example, see: Ethics Docket 1977‐02 and 1978‐03.
(2) “Informed consent” is defined in Rule 19.301 Terminology.
(3) The Attorney General serves as counsel to prosecutors in the Offices of State’s Attorney in Maryland.