Ethics Hotline & Opinions

ETHICS DOCKET NO. 2001-20

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2001-20

Conflict of Interest Between Attorney and Office of State’s Attorney


 Your letter indicates that your firm is considering hiring an attorney who is currently an Assistant State’s Attorney in a particular County. Her husband is also an assistant state’s attorney in the same County. You ask whether your firm will be barred from handling criminal and DWI cases in same County if you hire this particular attorney.

Rule 1.8(i) of the Maryland Rules of Professional Conduct provides as follows:

“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 the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.”

Thus, it is clear that this attorney who you wish to hire can not handle any criminal matter opposite her husband in the State’s Attorney’s office without consent from the client. This raises a second issue regarding the “consent” of a client. This Committee has opined in Ethics Docket 99-28 that government agencies ethically have the right to waive a conflict in certain circumstances unless precluded by specific laws or regulations. The State must analyze each situation as it arises to determine whether it may consent to such a waiver.

You inquire as to whether your firm would also be disqualified from handling criminal matters in this County. A further reading of the comments to Rule 1.8(i) states as follows:

Family relationships between lawyers. – Rule 1.8(i) applies to related lawyers who are in different firms, Related lawyers in the same firm are governed by Rules 1.7, 1.9 and 1.10. The disqualification stated in Rule 1.8(i) is personal and is not imputed to members of firms with whom the lawyers are associated.”

Since the disqualification is personal, your firm will not be barred from handling criminal and DWI cases in the County where her husband is a prosecutor. You may wish to review Ethics Docket 88-2, 90-3 and 95-42 which discuss similar issues of family relationships between lawyers.

We hope the foregoing is responsive to your inquiry.

This opinion, 01-20 makes references to opinions 88-02, 90-03,  95-42 and 99-28.

REFERENCES:
Maryland Rules of Professional Conduct 1.8(i)


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.