Ethics Hotline & Opinions

Ethics Docket No. 1990-03

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-03

Marriage of Assistant Public Defender and Assistant State’s Attorney

 

Your letter of inquiry advises that you are an Assistant Public Defender and the woman you intend to marry is an Assistant State's Attorney. Both of you practice in the same county.

Your letter of inquiry further advises us that neither you nor your fiancée have supervisory positions and you do not normally face each other in court.

You have inquired as to whether your jobs will present an ethical problem since you represent criminal defendants and your future wife prosecutes for the State.

Formal Ethics Opinion 77-2, Ethics Dockets 78-3 and 82-22 concern this matter. The Maryland Rules of Professional Conduct have dropped the requirement, formally found in Canon 9 of the Maryland Code of Professional Responsibility, that there be no appearance of professional impropriety. However, the Maryland Rules' restrictions on client confidences (Maryland Rule 1.6) and conflicts of interest (Maryland Rules 1.7 - 1.10) warrant attention when considering this issue.

The Committee on Ethics is of the opinion that generally your marriage will not be a problem to your respective continued jobs since neither of you has supervisory authority over disposition of cases or control of assignments. However, we strongly recommend that any potential conflicts be reviewed on a case-by-case basis, since the State of Maryland. As your wife's employer, may be unable to consent to her representation of clients who may be affected by your being an Assistant Public Defender.

Rule 1.8(i) requires "consent by the client after consultation regarding the relationship," when one lawyer is related tot he lawyer on the other side of a directly adverse issue. Ethics Docket 82-22, a copy of which is enclosed, discusses the consent issue of an attorney working for the State or a local government. Ethics Docket 82-22 cites American Bar Association Formal Opinion 16 (1929) to the effect that, "no question of consent can be involved as the public concerned and it cannot consent." Therefore, you and your future wife cannot be involved in cases when you and she are directly opposing each other.

We further wish to notify you that there is a California case involving a conflict of interest and the disqualification of a lawyer who had an intimate relationship with an opposing law firm's secretary. See, Gregori v. Bank of America, California Superior Court for Sonoma County No. 14727 (9/11/89), 207 Cal. App. 3d 291; 5 Man. Prof. Conduct 20 (1989) where the attorney discussed significant aspects of a case pending with his paramour's employer.

This opinion, 90-03 makes references to opinions 77-02, 78-03 and 82-22.

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.