MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2005-14
Conflict of Interest–Son of retired judge serving as counsel for defendants accused of violations of orders entered by judge prior to retirement
You are a public defender whose father recently retired from the bench of your county’s District Court. When your father formerly served as a judge, care was taken to ensure that you were not assigned to defend defendants who appeared before him. Because he will not be the judge who adjudicates such subsequent proceedings, you have asked whether you are permitted to represent defendants when they are charged with violating your father’s: 1) orders of probation, and 2) Protective Orders or Peace Orders.
Maryland Lawyers’ Rules of Professional Conduct, Rule 1.7 provides in pertinent part:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
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(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; [and]
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(4) each affected client gives informed consent, confirmed in writing.
Given the facts of your inquiry, the Committee believes that you will have to determine on a case-by-case basis whether your relationship with your father would constitute a “personal interest” which could pose “a significant risk” that your representation of a client accused of violating one of your father’s orders would “be materially limited.”
Whether any personal interest could materially limit your representation may depend upon the nature of the order and whether the intent, clarity, fairness or applicability of any provisions thereof may or should be questioned or challenged during the course of your subsequent representation of the client. In some instances, the fact that your own father entered the original order may be unlikely to have any material affect on your subsequent representation (e.g., in defending alleged violations of Protective and Peace Orders); in others (e.g., VOP hearings), the fact that your own father entered the order could prompt reluctance to argue regarding the order’s intent, clarity or fairness or in mitigation when sentencing is revisited.
Finally, the Committee notes that Rule 1.7(b) provides that if you reasonably believe you can provide competent and diligent representation to the affected client and the affected client gives informed consent, confirmed in writing, you may represent the client.
Opinions of the Committee may be obtained from the Committee’s website: www.msba.org.
We hope that this opinion is of assistance.