MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-14
Is there a conflict of interest where a spouse is a law enforcement officer and his wife practices criminal defense work in the same jurisdiction, but not cases in which the spouse is directly involved?
You practice solely in the area of criminal defense in an Eastern Shore community. Your spouse is a law enforcement officer with the local police agency. According to the facts you have related in your inquiry, you do represent clients who are criminally charged by your spouse’s agency. However, these are cases in which he has had no personal involvement other than his employment by that agency.
You have asked the Ethics Committee for an opinion as to any conflict of interests relating to your representation of a client criminally charged by a local law enforcement agency that employs your spouse.
In criminal cases the repercussions of conflicts of interest may be so grave that ordinarily a lawyer should decline representation if the conflict may limit the lawyer’s representation. It is the attorney’s responsibility to factually determine if there are any circumstances which would limit the attorney’s representation. The Rules of Professional Conduct prohibit certain representational conflicts of interest, including representing a person with interests adverse to: another client, a third party, or the lawyer’s own interests. Rule 1.7(b). Generally, the potential conflict can be waived if the lawyer believes the representation will not adversely affect the client’s interests and the client consents after full disclosure and consultation. The Committee finds there is no per se prohibition against your continued criminal representation of clients in the same jurisdiction as your spouse. However, we strongly recommend that you carefully review any potential conflict on a case-by-case basis.
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.
In the facts provided, you indicate that your spouse is not personally involved in cases where you are defense counsel. However, this does not eliminate potential indirect involvement your spouse may have in those same cases. Regardless of the problems in self-classifying conduct by a law enforcement office as direct or indirect, the principals governing conflict of interest for the direct involvement extend equally to situations of indirect involvement. The affect on your ability to advocate for your client without limitation is the same. You and your spouse are not simply sharing involvement in a matter. His interests as a law enforcement officer, in most cases, will be directly adverse to yours, as a criminal defense lawyer.
Also, be cognizant of the fact that as the sole attorney in this relationship the burden to avoid conflicts remains exclusively yours. This is particularly important in light of your location on the Eastern Shore which typically has smaller, more intimate institutions than other more populous counties in Maryland.
Lastly, in all cases, we suggest that you fully disclose this relationship and all other facts to the extent reasonably necessary to permit a client to make an informed decision regarding the representation. Rule 1.4(b). Even in cases where you believe there is no conflict, clients should be informed of the potential conflict, however so slight, and the nature of your relationship by being married to an officer of the law enforcement agency. The clients should have this information available in making the decision of retaining you to represent them.
In summary, subject to the foregoing analysis, there is no per se conflict of interest.