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Introduction and Scope
The Committee has before it a letter from a lawyer married to a deputy district attorney whose present duties consist mainly of prosecuting misdemeanor cases in county court. The lawyer inquires concerning the circumstances in which she can properly represent defendants in felony and misdemeanor cases. She also raises an issue as to the circumstances under which lawyers with whom she is associated in practice can represent defendants in such cases. The inquiry is one of several made over the past few years by prosecutors and criminal defense lawyers whose spouses are affiliated with a group of lawyers representing interests adverse to interests which the inquirer or lawyers connected in practice with the inquirer propose to represent. In addition, members of the Committee have received comments and questions from lawyers married to other lawyers with enough frequency to suggest that ethical questions arising from these marriage relationships continue to arise, despite the issuance of Revised Opinion No. 52 on December 13, 1975. Consequently, the Committee has decided to review the ethical questions presented when spouses, or groups of lawyers with whom the spouses are affiliated in practice, seek to represent adverse parties, with special attention being given to situations where one spouse is a lawyer for a governmental entity.
At the outset, two observations should be made about the scope of this opinion. First, the opinion will discuss only situations where both spouses are involved as lawyers, and not those where one spouse is a judge. The latter situation implicates the Code of Judicial Conduct as well as the Code of Professional Responsibility. The relationship between the two bodies of law raises issues which are beyond this Committee's purview. See generally Smith v. Beckman, 683 P.2d 1214 (Colo. App. 1984); Stephens v. Stephens, 292 S.E.2d 689 (Ga. 1982).
Second, the Committee has focused on circumstances where lawyers legally married to one another (or lawyers with whom such lawyers are associated) seek to represent adverse interests in litigation or negotiation. There is, however, no clear line in this area between the marriage relationship and other close relationships among lawyers, such as parent and child, best friends, roommates, and the like. While the inquiry before the Committee involves the marital relationship and it is thus this relationship which the Committee has had in mind in its discussions, the principles discussed herein may be applicable to these other relationships. This opinion, however, does not attempt to consider such relationships in detail.
There is general consensus that the ethical precepts implicated when lawyers married to one another become directly or indirectly involved in antagonistic situations are those found in Canons 4, 5, and 9. Canon 4 admonishes lawyers to preserve the confidences and secrets of their clients. Canon 5, insofar as it is relevant to the marriage relationship, requires a lawyer to refuse employment when the lawyer's own interests may impair his or her independent professional judgment. Canon 9 generally tells lawyers that they should avoid even the appearance of professional impropriety.
The remainder of this opinion will commence with a general discussion of how the disciplinary rules and ethical considerations found in each of the three canons are implicated by the marriage relationship. Thereafter, this discussion will be applied to three situations: (1) the situation where both spouses seek to become directly involved in the contested matter; (2) the situation where neither spouse is directly involved in the matter, but lawyers with whom the spouses are somehow affiliated find themselves on opposing sides; and (3) the situation where only one of the spouses is directly involved against lawyers who are affiliated in some way with the other spouse. Particular attention will be paid to situations where one of the spouses is employed by a public agency.
General Discussion
Canon 4
DR 4-101 prohibits a lawyer from knowingly revealing a client's confidences or secrets or using a client's confidences or secrets to the disadvantage of the client, for the advantage of the lawyer himself, or for the advantage of a third person. Canon 4's ethical considerations also exhort the lawyer to avoid placing himself or herself in situations which might precipitate inadvertent disclosure of confidences or secrets. For example, absent the consent of the client, the lawyer should not "seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or his confidences or secrets would be revealed to such lawyer." EC 4-2. The lawyer is "to shun indiscreet conversations concerning his clients." Id. He or she should exercise care "to prevent the disclosure of the confidences and secrets" of one client to another client. EC 4-5. Finally, the lawyer is told to refuse employment "that might require such disclosure." Id.
There is a potential for intentional or inadvertent disclosure of clients' confidential information in the marital relationship, not only because of the frequency and extent of contact between the spouses, but also because the relationship itself ordinarily involves the sharing of trust and confidences. With a single exception, however (N.J. Advisory Comm. on Professional Ethics Op. 237 [1972]), the ethics opinions and cases have not regarded Canon 4 as an insuperable obstacle to the spouses' representation of adverse interests. With respect to the problem of intentional disclosure, these authorities simply refuse to assume "that an attorney is going to divulge professional confidences to a spouse, whether or not that spouse is also an attorney. . . ." Fla. Bar Professional Ethics Comm. Op. 74-49 (1974). Accord, Blumenfeld v. Borenstein, 276 S.E.2d 607, 609 (Ga. 1981); Ore. Bar Ass'n Comm. on Professional Responsibility Op. 281 (1975); ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975). With respect to the possibility of inadvertent disclosure, the authorities admonish the spouse-lawyers to exercise "exceptional" care that confidential information is not inadvertently disclosed by "the seemingly routine discussion of professional experiences between them," D.C. Bar Comm. on Legal Ethics Op. 50 (1978), by "information contained in a telephone message left for the lawyer at home," ABA Comm. on Ethics and Professional Responsibility Formal Op. 340 (1975), or by any other means.
Canon 5
That portion of Canon 5 particularly applicable to lawyer-spouses is found in DR 5-101(A):
Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests. (Emphasis supplied.)
Depending upon the substantive law of domestic relations and their own personal arrangements, each spouse may be regarded as having some "financial" or "property" interest in money which the other earns by performing professional services for clients. This interest may be especially problematical where one spouse has a contingent-fee arrangement with his or her client. See ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975).
Even if the spouses have no financial or property interest in one another's income, they still may be regarded as having a "personal" interest in one another's general reputation, success, and welfare. As another ethics committee has put it:
The marriage relationship is such that it is the duty of one to do everything in his or her power for the enhancement of the reputation and well being of the other. Each is concerned not only with demonstrating the personal ability and skill of the other, but with the success of the other in the performance of professional duties. Ill. Bar Professional Ethics Op. 311 (1969).
Because one or both spouses might find it hard to exercise professional judgment free of personal considerations, "the domestic and professional responsibilities of husband-and-wife lawyers may be incompatible when they represent conflicting interests." Colo. Bar. Ass'n Ethics Comm. Rev. Op. 52 (1975).
Canon 9
Canon 9's adjuration to avoid even the appearance of impropriety is most frequently mentioned in opinions where one of the spouse-lawyers is employed by a public prosecutor or other public agency. While some opinions fail to distinguish between public and private lawyers in discussing an appearance of impropriety, e.g., N.J. Advisory Comm. on Professional Ethics Op. 288 (1974), courts increasingly evidence a reluctance to disqualify private attorneys based on "appearance" of impropriety alone, where there is no "actual" impropriety. See, e.g., Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir. 1980); Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980); Blumenfeld v. Borenstein, 276 S.E.2d 607 (Ga. 1981); Non-Punitive Segregation Inmates of Holmesburg Prison v. Kelly, 589 F. Supp. 1330 (E.D. Pa. 1984).
At least as applied to lawyers employed by a governmental agency, the problem presented by Canon 9 is twofold. First, it is sometimes thought that marriage and advocacy are so inconsistent that there is an inevitable appearance of impropriety. "How two people can live together as husband and wife while they are in the midst of contending with all the strength, energy and ability at their command as opponents in a lawsuit and particularly in a criminal case, is difficult to understand." Ill. Bar Professional Ethics Op. 311 (1969). Second, where one private lawyer, or another lawyer affiliated with that lawyer, litigates or negotiates with a spouse employed by a governmental agency, there may be an implication that the private lawyer is able to influence the public official improperly or upon irrelevant grounds. Id.; DR 9-101(C); N.J. Advisory Comm. on Professional Ethics Op. 288 (1974); N.Y. State Bar Comm. on Professional Ethics Op. 368 (1974).
Particular Situations
Spouse v. Spouse
Of the three situations considered in this opinion, the situation where both lawyer-spouses are directly involved in attempting to represent adverse interests presents the greatest potential for unethical conduct under Canons 4, 5, and 9. With respect to DR 4-101's prohibition against knowing disclosure of confidences, the Committee accepts the proposition that the spouses would respect the professional obligation of each to hold inviolate the confidences of the respective clients. Blumenfeld v. Borenstein, 276 S.E.2d 607 (Ga. 1981); Fla. Bar Professional Ethics Op. 74-49 (1974); ABA Comm. on Ethics and Professional Responsibility Op. 341 (1975). Because each spouse directly involved in the representation of competing clients will ordinarily possess the respective clients' confidences and secrets, however, there is a real possibility of inadvertent disclosure, whether by indiscreet conversations (EC 4-2), routine discussion of professional experiences (D.C. Bar Comm. on Legal Ethics Op. No. 50 [1978]), messages left for one of the lawyers at home (ABA Comm. on Ethics and Professional Responsibility Op. 340 [1975]), or another of the myriad ways which might be imagined, given the extent of contact between the spouses. Moreover, the circumstances of direct involvement by both spouses is one in which the inadvertent disclosure of confidential information is likely to be compounded by use of the information to the disadvantage of the client whose information is disclosed and/or the advantage of the opposing client. Indeed, the spouse who inadvertently acquires the opposing client's confidential information, because he or she is directly involved in the professional representation of his or her own client, confronts the unpleasant proposition that his or her duty to represent the client zealously, DR 7-101, may require disclosure or use of the confidential information. Cf., EC 4-5.
Direct involvement of both spouse-lawyers in representing antagonistic interests also presents the greatest potential for conflict between the spouses' domestic and professional responsibilities and the greatest potential for an inability on the part of one or both spouses to exercise independent professional judgment. It would be a remarkably unusual couple who could at all times zealously represent clients in litigation - maneuvering against one another, formulating strategy to defeat one another, and seizing every legitimate advantage from the opposition's mistakes - and yet maintain trust, confidence, and openness in their domestic life. This inevitable tension between the spouses' "personal" interest and their professional obligations to the clients would be exacerbated in a situation where one or the other spouse had a direct financial interest in the outcome of the litigation, such as a contingent-fee contract.
Finally, direct involvement of the spouses as adversaries is likely to involve an appearance of impropriety. Because most people regard the marital relationship as involving shared confidences and a commitment on the part of one spouse to do nothing which could bring the other into disrepute, it would not take an overly-cynical member of the profession or the public to doubt whether professional confidences are kept or whether professional obligations are always placed before marital ones. Although precautions might be taken and nice distinctions occasionally woven with a view toward avoiding problems under Canons 4 and 5, the nature of the problems already discussed makes the appearance of impropriety virtually inevitable.
Like other groups which have considered the subject, e.g., ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975), the Committee is reluctant to suggest a per se rule requiring that spouses always be prohibited from direct involvement in work on a matter for clients who are adversaries. Instances can be imagined where the possibility of disclosure or conflict are remote. For example, one or both spouses may, at the behest of other lawyers for whom they work, perform pieces of discrete, isolated legal research on different issues raised by the contested matter. Neither may possess confidences, and neither may have enough "personal" interest in the matter so that there would be a conflict between professional and marital obligations. Instances where both spouses can properly be involved, however, are sufficiently rare that such involvement should ordinarily be avoided. Moreover, the spouses should undertake such involvement only with the informed consent of each client. See Colo. Bar Ass'n Ethics Comm. Rev. Op. 52 (1975); ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975); D.C. Bar Comm. on Legal Ethics Op. 50 (1978).
The one circumstance in which a per se rule does seem justified is the instance where one of the spouses is employed as lawyer for a public prosecutor or other public agency and the other seeks to become directly involved in a matter handled by the governmental employee. The Committee believes that there would be an inevitable perception that improper or irrelevant influence would come to bear on decisions made by the governmental lawyer. See DR 9-101(C); EC 9-2; Colo. Bar Ass'n Ethics Comm. Rev. Op. 52 (1975) (public prosecutor); N.Y. State Bar Comm. on Professional Ethics Op. 409 (1975) (public prosecutor); N.Y. State Bar Comm. on Professional Ethics 368 (1974) (civil matter); Ore. Bar Ass'n Comm. on Professional Responsibility Op. 281 (1975) (public prosecutor).
"Firm" v. "Firm"
The situation where legal organizations with which the spouse-lawyers are affiliated represent opposing interests, but neither spouse is directly involved, presents only remote and insubstantial possibilities of ethical improprieties, provided certain common-sense precautions are observed by the organizations and the members of the organizations. The inadvertent disclosure of confidences prohibited by Canon 4 will be minimal (1) if the involved members of both organizations scrupulously refrain from discussing the matter with the respective spouses and (2) if the organizations institute procedures to ensure that files, documents, and other confidential information are screened from the lawyer-spouses. For example, files and similar materials might be marked with a warning to serve as a constant reminder that their contents should not be shared with the spouses and that lawyers handling the case should remain sensitive to the problem.
Canon 5 problems are likewise remote where neither spouse is directly involved in the contested matter, because the lawyers performing professional obligations on behalf of the clients do not themselves have any "personal" interest which might conflict with that of the clients. Even where one of the organizations has a "financial" interest in the outcome of the matter, such as a contingent fee agreement, the interest of the spouse associated with that organization will be indirect, since it will be an inchoate monetary interest by virtue of whatever arrangement, if any, permits that spouse to share in the organization's profits. Again, so long as other members of the organization do not share confidences with the spouses and so long as the spouses cannot influence the performance of professional obligations by other members of the organization, the potential conflict is remote.
Finally, the Committee believes that there is ordinarily no appearance of impropriety in the organizations' representation of opposing interests, even where one of the organizations is a public prosecutors' office or other group of governmental lawyers. So long as (1) the lawyers handling the contested matter do not discuss the matter with the spouses; (2) there are in place other procedures (discussed above) ensuring that confidential information is protected; and (3) neither spouse has professional responsibility for representation of the clients in the matter or is in a position to influence handling of the matter, then, although "there are always those who will find a hint of impropriety in any situation involving dual attorney-spouses, it does not appear that such would be the reaction of any significant portion of the bar or public at large, if informed of the circumstances." D.C. Bar Comm. on Legal Ethics Op. 50 (1978).
The Committee is as reluctant to articulate a per se rule legitimizing the organizations' representation of antagonistic interests as it is to articulate a per se rule prohibiting direct representation of adversaries by the spouses. There may be rare situations, particularly when a governmental agency is involved, where such representation should be avoided. For example, where one spouse is the district attorney or other official ultimately responsible for conduct of the public's legal business and for supervision of other lawyers in his or her organization, it might well be regarded as improper for an organization with which that attorney's spouse is affiliated to represent clients adverse to the interests of the public organization, even though the public attorney is not directly responsible for the particular matter. Given the publicly-employed spouse's high position in this example, there is really no way (absent disqualification of the entire office) in which he or she can be isolated from (1) ultimate supervisory responsibility for the matter in question and (2) general responsibility for making organizational decisions (compensation, for example) affecting the lawyers directly involved in handling the matter. A reasonably informed public might thus conclude that members of the private organization were being retained because of their connection to a public official and that the governmental attorney-spouse could ultimately influence the agency's handling of the matter. See N.Y. State Bar Comm. on Professional Ethics Op. 368 (1974).
Spouse v. "Firm"
Where one lawyer-spouse (hereinafter, for simplicity, called the "participating spouse") is directly involved in an adversary matter and the opposing client is represented by members of an organization with which the other spouse (hereafter, for simplicity, called the "uninvolved spouse") is affiliated, generalizations are more difficult and propriety may depend on factual nuances. If lawyers in the uninvolved spouse's organization refrain from discussing the matter with the uninvolved spouse and if they establish procedures, similar to those already mentioned, to minimize the possibility that the uninvolved spouse will inadvertently obtain their client's confidential information, then the problem of inadvertent disclosure is at least limited to the participating spouse's inadvertent disclosure of information to the uninvolved spouse. Even if there were such disclosure, the uninvolved spouse, unfamiliar with the matter, might not appreciate the significance of the disclosure. More importantly, the practice of not discussing the matter with other members of that spouse's organization would minimize the likelihood that the inadvertent disclosure could be used to the disadvantage of the participating spouse's client or the advantage of the opposing client. This practice, together with the practice of isolating the uninvolved spouse from the case and files, should allay concerns arising under Canon 4.
The Canon 5 problems presented by the direct involvement of one spouse, but not both, in a matter contested between the spouses' organizations are more problematic than the Canon 4 issues. The participating spouse, directly responsible for the professional representation of his or her client, arguably has some potentially conflicting "personal" interest in his or her relationship with the uninvolved spouse's professional colleagues. Also, a contingent-fee contract between the uninvolved spouse's firm and its client might, if the potential fee is large, give rise to a sufficient "financial" interest to affect the participating spouse's professional judgment.
To resolve the Canon 5 problems presented in this situation, the Committee believes that the participating spouse who discovers that he or she represents a client adverse to a client represented by the uninvolved spouse's organization is obliged to disclose that fact to his or her own client and to the opposing organization. The organization, in turn, must disclose the face to its own client. Each client, having been fully informed, should be permitted to decide whether to retain or continue with the lawyer or law firm. Colo. Bar Ass'n Ethics Comm. Rev. Op. 52 (1975) (citing EC 5-15); ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975); DR 5-101(A). Conversely, if the uninvolved spouse's organization is the first to acquire actual knowledge that it is adverse to a client represented by the participating spouse, it should be the one to initiate the disclosure process.
While the involvement of a public agency employing one of the spouse lawyers complicates the issues heretofore discussed, the Committee does not conclude either that the privately-employed spouse (hereinafter, for simplicity, called the "private spouse") must always decline to participate directly in adversarial matters handled by agency lawyers unrelated to him or her or, conversely, that unrelated lawyers in the private firm must always decline cases handled by the publicly-employed spouse (hereinafter, for simplicity, called the "governmental spouse"). "If Canon 9 were construed . . . to prohibit an attorney from defending an accused because his or her spouse, although not prosecuting the case, was a member of the district attorneys' office, the Bar would be elevating its desire for public respect far beyond its confidence in the integrity of its own members and its belief in the public's ability to distinguish proper activities of members of the Bar from improper activities." Ore. Bar Ass'n Comm. on Professional Responsibility Op. 281(1975).
Since the primary danger to be avoided (beyond those arising under Canons 4 and 5) is the perception that the private lawyer or firm is able to influence the public agency or official on improper or irrelevant grounds, the general principle is that each situation should be examined to determine the directness or remoteness of that danger. Some of the pertinent questions would be:
(1) What is the nature of the publicly-employed spouse's responsibilities? There is a significant difference between a deputy responsible only for handling assigned cases, bereft of any supervisory duties, and the district attorney, United States attorney, or attorney general. In the former case, if the governmental spouse has a matter where he or she is opposed by lawyers affiliated with his or her uninvolved spouse, his or her decisions are subject to review, and ought to be closely reviewed, by superiors in the agency. Conversely, if the private spouse participates directly in contesting a matter against other agency lawyers, it is difficult to see how the governmental spouse is really in a position to influence handling of the matter, if his or her duties are non-supervisory in nature.
(2) How does the organization of the public entity affect the governmental spouse's connection with the contested matter? Groups of public lawyers are sometimes organized into divisions (county court-district court; civil-criminal; antitrust-organized crime; etc.) or operate with separate groups of lawyers having distinct areas of responsibility. It should be proper for the private spouse or the affiliated firm to oppose an agency on matters for which the governmental spouse has no sort of responsibility.
(3) In cases where unrelated lawyers in the private firm seek to be adverse to the governmental spouse, is the private uninvolved spouse wholly uninvolved in the area of practice out of which the contested matter arises, or merely uninvolved in the particular matter? In the latter situation, "the question of disqualification is more substantial because the non-governmental spouse is not insulated from the firm's practice before the agency generally, and has a much higher degree of knowledge of, and interest in major matters before the agency, whether or not personally employed to represent clients in particular such matters." D.C. Bar Comm. on Legal Ethics Op. 50 (1978).
(4) Is the contested matter civil or criminal in nature? Accused persons in criminal cases are afforded a panoply of rights by state and federal constitutions and statutes, including the right to effective assistance of counsel. While the relationship between these rights and ethical precepts is beyond the scope of an ethics opinion, the Committee believes it particularly prudent and appropriate in criminal cases that a private firm contacted by an accused who is being prosecuted or investigated by a prosecutor married to a lawyer in the firm should always make full disclosure of the spousal relationship to the client and permit the client to decide whether to commence or continue the relationship. See People v. Castro, 657 P.2d 932, 945-946 (Colo. 1983). In making the disclosure, however, the firm must at the same time take special care to stress that the client should not expect any advantage by reason of the spousal relationship. DR 9-101(C); N.Y. State Bar Comm. on Professional Ethics Op. 368 (1974).
Two principles mentioned earlier - that close questions should be resolved in favor of declining representation in a contested matter and that the client, having been fully informed of the potential ethical problem, decide whether to continue the relationship - can also apply even when a public agency is involved. In so stating, the Committee is aware of ipse dixit in certain authorities holding that consent is an impossibility insofar as one of the clients, the public, cannot give its consent. E.g., Ore. Bar Ass'n Comm. on Professional Responsibility Op. 281 (1975). While it is obviously true that referenda cannot be held in each instance where consent is required, the very function of a public official, whether that official is a lawyer or not, is to make daily decisions on the public's behalf in conducting the business of his or her agency. The Committee perceives no valid reason why such decisions should not encompass a determination to give the public's consent to legal representation in the situations under consideration, provided that the official himself or herself does not have a personal interest in the determination. For example, although a spouse who is the district attorney could not appropriately give consent, he or she could consent where it is a deputy whose marriage to a lawyer gives rise to a potential ethical problem.
Vicarious Disqualification
A strict, narrow, literal reading of DR 5-105(D), the Model Code of Professional Responsibility's so-called "vicarious disqualification" provision, arguably, casts doubt on a number of conclusions suggested in this opinion (and nearly every other opinion and case which has considered the issues raised herein). It provides:
If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment. (Amended and effective October 23, 1974.) (Emphasis supplied.)
Since the Committee has concluded that it is rarely appropriate for spouse-lawyers to oppose one another, absent client consent, a literal reading of DR 5-105(D) would suggest that it is likewise rarely appropriate for the spouse's firms or groups to oppose one another, absent client consent.
The authorities considering the problem posed by DR 5-105(D) have handled it in one of three ways. The first is to ignore it. The second is to limit it to "a multiple client situation, where a single attorney seeks to represent a client who is opposing a client of another member of the firm." Ore. Bar Ass'n Comm. on Professional Responsibility Op. 281 (1975). While this second view finds support in the circumstance that the vicarious disqualification provision appears in DR 5-105, which generally addresses only conflicts of interest issues presented by multiple clients, it is inconsistent with the language of DR 5-105(D) (which speaks generally of "a" Disciplinary Rule, not "this" Disciplinary Rule) and with cases applying DR 5-105(D) to situations other than ones involving multiple clients. E.g., Greitzer & Locks v. Johns-Manville Corp., No. 81-1379 (4th Cir. March 4, 1982) (Slip opinion).
The third way of dealing with DR 5-105(D) is to suggest that it does not apply to disqualify a lawyer's entire law firm "if a lawyer who is married to a lawyer declines employment because of that lawyer's understanding and application of an ethical consideration rather than because of the applicability of a disciplinary rule. . . ." Colo. Bar Ass'n Ethics Comm. Rev. Op. 52 (1975). This approach, although facile and elastic, seems to invite justification of a particular decision by ad hoc nomenclature and ignores the fact that it is rarely clear whether a spouse's conduct is based entirely on an ethical consideration, entirely upon a disciplinary rule, or partly on both types of precepts. The approach thus does not embody a very useful rule for guiding what the spouses or their firms ought to do or for evaluating what they have done.
The Committee does not believe there is a way satisfactorily to reconcile some of the conclusions reached in this opinion and other cases and opinions with a narrow, literal reading of DR 5-105(D). It is instructive, however, to consider how the authorities have handled the similar problems created when a governmental lawyer leaves the government to accept employment with a private firm. DR 9-101(B) prohibits the lawyer from handling a matter "in which he had substantial responsibility while he was a public employee." A literal reading of DR 5-105(D) would compel the conclusion that his new private employer could likewise not handle such a matter.
Although Colorado has expressly declined to pass on the question, Osborn v. District Court, 619 P.2d 41, 46 n. 6 (Colo. 1980), other opinions and cases have held that institution of procedures to prevent the former government attorney from discussing the matter with his new private colleagues and to separate him from the matter (similar to those suggested elsewhere in this opinion) is sufficient to avoid disqualification of the entire firm, despite the literal reading of DR 5-105(D). ABA Comm. on Ethics and Professional Responsibility Formal Op. 342 (1975); Greitzer & Locks v. Johns-Manville Corp., No. 81-1379 (4th Cir. March 4, 1982) (slip opinion) (intrafirm screen is an acceptable alternative to automatic disqualification of a law firm hiring a former government attorney); Armstrong v. McAlpin, 625 F.2d 433, 445-46 (2d Cir. 1980) (attorney adequately screened from any participation in case and no threat of taint from firm's continued representation), vacated on other grounds with instructions to dismiss app., 101 S.Ct. 911(1981); Central Milk Producers Cooperative v. Sentry Food Stores, Inc., 573 F.2d 988, 992-93 (8th Cir. 1978) (disqualification not warranted when opposing counsel approved screening procedures of former government attorneys who had worked in closely related case and there were no allegations of actual impropriety); Chambers v. Superior Court, 121 Cal. App. 3d 893, 175 Cal. Rptr. 575 (1981) (even though government had not waived imputed knowledge, screening was sufficient and, since case was filed three years previously, disqualification would have adverse effect on firm's "innocent client"). But see Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir. 1980) vacated on other grounds and remanded with instructions to dismiss app., 450 U.S. 903 (1981) (firm's screening device found inadequate as a matter of fact). The basis for such decisions is the adverse impact which a strict reading of DR 5-105(D) would have upon the ability of governments to hire able lawyers, if those lawyers were to find it difficult to enter private practice because their ethical problem is imputed to the entire firm. A similar argument can be made to support the proposition that disqualification of one spouse should not automatically disqualify the spouse's entire firm. "Such a rule could be expected to affect the hiring practices of law firms and the professional opportunities of lawyers. A per se rule would effectively create a category of legal 'Typhoid Marys,' chilling both professional opportunities and personal choices." Blumenfeld v. Borenstein, 276 S.E.2d 607, 609 (Ga. 1981).
Conclusion
In light of the foregoing discussion, the inquiring attorney's specific questions can be answered as follows:
- Because the attorney's spouse is currently assigned to handle misdemeanors in a particular courtroom and (the Committee assumes) has no supervisory duties, the attorney may represent persons accused in criminal cases, so long as her spouse is not prosecuting the case. She should disclose the marriage relationship to the prospective client, take care to avoid any implication that the relationship could permit her to influence the prosecutors' decisions on improper or irrelevant grounds, and proceed only with client's consent. The district attorney's office should follow the procedures suggested herein, in cases where she represents the accused, to insulate her spouse from those cases.
- The view set forth in paragraph 1 of the Conclusion is not necessarily affected by the fact that the inquiring lawyer's husband has spoken with the accused at an arraignment or pre-trial conference. The inquiring lawyer may still represent the accused, so long as the husband's responsibility for the case ceases before she is retained. The Committee notes, however, that the husband's conversation with the accused raises potential ethical issues about the husband's role as a witness (and the wife's role in his examination should he become a witness), see generally DR 5-101(B), DR 5-102, and about whether one spouse may properly recommend employment of the other, especially where the recommending spouse is a prosecutor speaking to an accused asking for names of possible defense lawyers, see generally DR 2-103. Because the inquiring attorney does not state the substance of the spouse's conversation with the accused and because an adequate discussion of these issues would further lengthen this opinion, the Committee chooses not to address these possible issues at this time.
- Lawyers with whom the inquiring lawyer is associated may represent accused persons prosecuted by any deputy in the district attorney's office, having disclosed the spousal relationship and its implications to the client and having obtained the client's consent to proceed. The law firm should follow the procedures suggested herein to insulate the inquiring lawyer from any case in which her spouse is involved.
- A lawyer with whom the inquiring lawyer merely shares office space may represent accused persons, so long as the lawyer generally observes the requirement to protect the client's confidences and secrets. DR 4-101.
1995 Addendum
The Colorado Rules of Professional Conduct became effective on January 1, 1993, replacing the Code of Professional Responsibility. While the language of the Rules is somewhat different from the Code, the Ethics Committee considers this Opinion to continue to provide guidance to attorneys in this area. Attorneys are cautioned to review Tables A & B: Related Sections in the Colorado Rules of Professional Conduct and The Colorado Code of Professional Responsibility (found in the Colorado Ethics Handbook), to update the research contained in this Opinion and to conduct any independent research necessary.
Relevant provisions of the Colorado Rules of Professional Conduct, which should be examined together with this Opinion, are Rule 1.8(i) (regarding the specific conflict situation addressed in this Opinion); Rule 1.7(c) (regarding client waiver of a conflict of interest); Rule 1.10 (regarding imputed disqualification of a lawyer's firm from representation where the lawyer cannot ethically represent the client); Rule 1.6(a) and (c) (regarding confidentiality); Rules 1.7 (a)-(c), 1.8(b) and (f), and 1.9(a) (regarding conflicts of interest); and Rule 5.1(c) (responsibilities of a supervising lawyer or partner).
The Ethics Committee directs attorneys to Opinion 52 and the relevant provisions of the Colorado Rules of Professional Conduct contained in that opinion. This opinion is supplemented by Opinion 52 which should be reviewed in conjunction with the Rules.
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