MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-18
Possible Conflict of Interest when Attorney’s Spouse is a Member of a Governing Body of Jurisdiction and Attorney’s Practice Involves Civil and Criminal Matters where Jurisdiction is Opposing Party
You practice in a municipality and have advised us that more than fifty percent (50%) of your practice involves criminal defense for clients who have been arrested on various charges by police employed by that municipality. You have advised us that your practice also includes the representation of clients suing the municipality for violation of civil rights and/or representation of employees of the municipality on worker's compensation matters. Your wife has achieved a certain degree of prominence in the community and as such has been encouraged to run for public office as a municipal official. We do not understand from your inquiry that your wife is a lawyer or involved in representing the municipality in legal matters. You have informed us that your wife has been approached to run for a City Council position in the municipality, which is the governing body of that municipality. You have asked for our guidance as to whether your spouse's seeking election for office and becoming an elected official in the municipality will create potential conflict of interest issues for you or for her.
As you have recognized in your letter, the potential conflict issues need to be examined from two perspectives: (a) from your perspective as counsel for clients whose interests are adverse to the municipality in the future when your spouse serves as an elected official for that municipality; and (b) your spouse's concern as a potential elected official as to whether conflicts of interest are created by reason of your representation of clients whose interest are adverse to the municipality on whose behalf she serves. As you know, it is the function of this Committee to provide guidance to Maryland lawyers regarding their obligations under the Maryland Rules of Professional Conduct. We do not offer opinions to public officials as to what may be their responsibilities, independently, under State or local ethics laws. Prior to undertaking to run for office, your spouse may well want to consider obtaining an opinion from the Attorney General's Office of applicable ethical authorities as to her responsibilities now and in the future in the event she is elected to office.
With respect to your ability to continue to represent clients whose interests are adverse to the municipality should your spouse be elected to the municipal governing body, it is the view of this Committee that the issue requires an examination of Rule 1.7 of the Maryland Rules of Professional Conduct and the Comments there under. That Rule, in relevant part, provides:
"(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 interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation."
At the heart of this Rule is the recognition that loyalty to the client is one of the fundamental elements of the attorney-client relationship. The Comments under Rule 1.7 make clear that "the lawyer's own interest should not be permitted to have adverse effect on representation of a client" and further provide as follows:
"Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclosure courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved."
When we apply the language of Rule 1.7(b) with an understanding of the foregoing from the Comments there under, it is the view of this Committee that your wife's election to a City Council position in and of itself would not create a per se prohibition against your representation of all clients having an interest adverse to the municipality under all circumstances. For example, as a member of the Council your spouse may have no involvement of any kind in a criminal matter, which involves an arrest by the police department and appearances before the District or Circuit Court where judges are called upon to evaluate the guilt or innocence of one of your clients. On the other hand, there are other matters where your wife's status as a municipal official may limit or be perceived to limit your ability to pursue certain claims on behalf of clients (for instance, directly against the municipality or its officials for alleged violations of civil rights, etc.) All such circumstances cannot be foreseen by you or by us at this time.
Thus, it is this Committee's view that if your wife is elected to the City Council, you will be required for potential clients having matters adverse to the municipality to conduct the analysis required by Rule 1.7(b) and to determine if you believe that your representation may be adversely affected by your relationship, marriage, with a municipal official. If you do not believe your representation will be so affected, you nevertheless will have to bring the issue to your client's attention and obtain the client's consent to the representation after consultation. As set forth in Rule 1.7(c) and the Comments there-under, you will need to explain to your clients the material limitations, if any, on the representation and ensure that the clients understand those in full before undertaking the representation. The Committee is of the view that this is not a situation in which a disinterested lawyer would conclude that there is no possibility of obtaining your clients' consent after consultation in all circumstances.
As part of our analysis, we have examined prior opinions of this Committee in analogous circumstances. There is no opinion of this Committee directly relating to the inquiry you have raised. However, this Committee has in the past examined various instances in which relationships between lawyers and members of their family may give rise to potential conflicts under various circumstances. You may want to examine the guidance we have provided in some of these opinions. See, for example, Ethics Docket 98-20 (involving the question of an attorney representing a governmental entity while simultaneously serving as an elected official himself); Ethics Docket 98-32 (involving the question of an attorney serving on a County Board and representing party which the Board regulates on unrelated matters); Ethics Docket 94-47 (involving the inquiry of a law firm which was considering hiring an associate related to a representative on a state administrative agency or commission before which the firm provided services for clients); Ethics Docket 95-42 (which involved an inquiry of a criminal lawyer who asked about the potential conflict that could arise if his brothers were elected to the office of the State's Attorney in the County in which he practices); and Ethics Docket 92-37, (involving the question to the right of members of a law firm to appear before one of the lawyer's father, who is a Circuit Court examiner).
REFERENCES:
Ethics Opinions: Ethics Dockets 1998-32, 1998-20, 1995-42, 1994-47 and 1992-37