RI-12

November 15, 1989

SYLLABUS

No conflict exists between a prosecuting attorney and the prosecutor's spouse, the district court administrator, and neither is disqualified from performing the functions of his/her position by virtue of their relationship.

Notwithstanding a direct technical conflict, both the administrator and the prosecutor must be alert to the possibility that the interpretation of administrative procedures and scheduling of cases may pit marital loyalty against neutrality of the judicial process, and procedures to resolve such conflict should be adopted.

References: MRPC 1.8(i); C-213; CI-458, CI-607.

TEXT

A lawyer nominated for election as prosecuting attorney advises that the lawyer's spouse is presently the court administrator of the district court of the same county in which the lawyer, if elected, will be practicing as prosecuting attorney. The spouse serves solely as administrator and performs no strictly judicial duties. The lawyer inquires whether serving as the prosecuting attorney would constitute a conflict of interest.

In C-213, we concluded that it is proper for the spouse of an assistant prosecuting attorney to represent defendants accused of crimes who are being prosecuted in the same county, provided the two are not opposing counsel in a given case. In CI-458 we concluded that it was not improper for an attorney who is the spouse of the county sheriff to represent an indigent defendant facing criminal prosecution in the spouse's jurisdiction. In CI-607 we concluded that an assistant prosecutor and defense counsel who are roommates and close friends may not represent adverse parties in the same case, but the defense counsel may represent a criminal defendant in a case not prosecuted by that same prosecutor's office, provided that it is not prosecuted by the assistant prosecutor who is a roommate and close personal friend of the defense counsel.

In all three opinions we opined that disclosure of the relationship and consent of the affected client were necessary.

In the fact situation presented, where the spouse of the inquiring attorney will not be involved in representation of adverse interests, no conflict is presented. We can perceive of no situation where the spouse's administrative activities would impair the professional judgment of the lawyer in performing prosecutorial duties. Therefore we know of no rule or interpretation thereof that would require disclosure of the relationship or consent of either the people of the State of Michigan, the opposing defense lawyer, or the criminally accused.

We base this conclusion on the assumption that the administrator's duties are conducted pursuant to neutral and ascertainable administrative procedures which protect against the possibility that a case may, because of marital loyalty, be administratively processed in such a way as to benefit the prosecutor/spouse over a criminal defendant.

We note that MRPC 1.8(i) and relevant Comment state:

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

"Comment: . . . Paragraph (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 paragraph (i) is personal and is not imputed to members of firms with whom the lawyers are associated."

If lawyer spouses are not prohibited from representing directly adverse parties as long as clients consent, and any disqualification is not imputed to the other members of the spouses' firms, we see no ethical prohibition in the instant case.