Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What are the ethical considerations in California when a deputy public defender and a deputy district attorney for the same county are married to one another?
(1) The public defender spouse may represent an accused being prosecuted by the district attorney spouse, provided (a) there is disclosure by the defender spouse of the marital relationship to and written consent by the accused and (b) there is disclosure by the prosecutor spouse of the marital relationship to and consent by the District Attorney. Court approval may also be required.
(2) The public defender spouse may represent an accused being prosecuted by a colleague of the district attorney spouse. No disclosure need be made or consent obtained by either attorney in the case.
(3) A colleague of the public defender spouse may represent an accused being prosecuted by the district attorney spouse. No disclosure need be made or consent obtained by either attorney in the case.
(4) A colleague of the public defender spouse may represent an accused being prosecuted by a colleague of the district attorney spouse. No disclosure need be made or consent obtained by either attorney in the case.
(5) All attorneys in such situations, spouses and colleagues alike, must be vigilant in discharging their ethical obligations to maintain their respective client confidences.
Rule 5-102(A) of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068, subdivision (e).
This opinion addresses the ethical issues raised in California when a deputy public defender and a deputy district attorney for the same county are married to one another. Specifically, four hypothetical situations are examined below:
1. When the public defender spouse represents a client being prosecuted by the district attorney spouse;
2. When the public defender spouse represents a client being prosecuted by a colleague of the district attorney spouse;
3. When a colleague of the public defender spouse represents a client being prosecuted by the district attorney spouse; and
4. When a colleague of the public defender spouse represents a client being prosecuted by a colleague of the district attorney spouse.
For purposes of this opinion, we have assumed, in the above listed situations, that "representation" means any work on behalf of the accused, in or out of the courtroom, and at any stage of the criminal proceedings. Similarly, we have assumed that "prosecution" means any work on behalf of the People with respect to the criminal case at hand, in or out of the courtroom, and at any stage of the criminal proceedings, including its investigation or related grand jury proceedings.
The first and most difficult of these four situations involves the representation of an accused by a deputy public defender who is married to the prosecutor of the accused. As outlined below, the Committee finds no single ethical rule in California directly applicable but concludes from a number of authorities that disclosure of the relationship, client consent and possibly court approval may be necessary for this sort of representation to go forward.
Perhaps the most fundamental quality of the attorney-client relationship is the absolute and complete fidelity owed by the attorney to his or her client.1 As the Supreme Court put it, "[T]he relationship between an attorney and client is a fiduciary relationship of the very highest character." (Clancy v. State Bar (1969) 71 Cal.2d 140.) It is that total loyalty to the interests of the client which makes possible and encourages the confidences essential to effective attorney-client communications and, as important, to the administration of justice. An early Court of Appeal said, "[a]n attorney at law should be a paragon of candor, fairness, honor and fidelity in all his dealings with those who place their trust in his ability and integrity, and he will at all times and under all circumstances be held to the full measure of what he ought to be." (Sanquinetti v. Rossen (1906) 12 Cal.App. 623, 630.)
Thus, the threshold question for an attorney as soon as he or she learns of this first situation - as the defense counsel or as the prosecutor - is whether he or she feels there would he any possibility of a dilution of that duty of complete fidelity to the client due to the marital relationship with the opposing counsel. If the attorney believes that the nature or quality of representation would be adversely affected in any manner by that factor, the attorney should not accept employment on that matter because it would involve a violation of the aforesaid duty of total loyalty.
However, assuming that the lawyer feels he or she can effectively represent the client (the accused or the People) despite the marital relationship with the opposing counsel, the next question is whether disclosure of that relationship to the client is ethically required coupled with the client's consent to the representation in light of that relationship. The Committee has not found any Rule of Professional Conduct in California directly on point. Nevertheless, we are of the unanimous view that the ethical and prudent attorney would make such a disclosure and would accept such employment only upon the client's written consent thereto. There are several independent reasons which, collectively support this conclusion.
The closest Rule of Professional Conduct, rule 5-102(A)2 provides:
"A member of the State Bar shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest, if any, in the subject matter of the employment. A member of the State Bar who accepts employment under this rule shall first obtain the client's written consent to such employment."
This rule is not directly controlling because it refers only to a "relation... with the adverse party" and not that party's counsel But the public policy behind this rule is clear: to ensure a client knows of any relationship between that client's counsel and the adversary which might taint or dilute the duty of complete fidelity. The same concern is present in the case of a marital relationship to the counsel for the adversary, and thus the client should be appropriately informed and be permitted to make the final decision, whatever the attorney's own good faith beliefs about his or her ability to be a full and vigorous advocate.
The above quoted California Rule of Professional Conduct and the policy behind it are in accord with the treatment of the general question of married counsel by the American Bar Association's Committee on Ethics and Professional Responsibility. Although neither the rules nor the opinions of the A.B.A. are binding upon California attorneys, they are often useful guides where there is no rule or opinion directly on point in California, as is the case here. In its Formal Opinion 340, issued in September 1975, the A.B.A. said, in relevant part (emphasis supplied):
"Where both husband and wife are lawyers but they are not practicing in association with one another, they are not necessarily prohibited from representing different interests or from being associated with firms representing differing interests. Like all lawyers, they must obey all disciplinary rules; a particular situation may be inherently difficult because of the close relationship between husband and wife. In any situation where a client or potential client might question the loyalty of the lawyer representing him, the situation should be fully explained to the client and the question of acceptance or continuance of representation left to the client for decision." (Emphasis supplied.)
It is significant that in the A.B.A.'s new Model Rules of Professional Conduct, adopted in August, 1983, rule 1.8(i) states: "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 who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."
As noted in footnote 2 above, California has not adopted the "appearance of impropriety" standard into its Rules of Professional Conduct. Nevertheless, California courts have engrafted an equivalent standard upon the conduct of attorneys in criminal cases in overseeing the fair and impartial administration of the criminal justice system, wholly apart from any R.P.C.-based ethical or disciplinary considerations. (See People v. Conner (1983) 34 Cal.3d 141, 147-48; People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 268-69; People v. Rhodes (1974) 12 Cal.3d 180, 185; Younger v. Superior Court (1978) 77 Cal.App.3d 892, 895-96; and People v. Municipal Court (Wolfe) (1977) 69 Cal.App.3d 714, 716-20. Compare Love v. Superior Court (1980) 111 Cal.App.3d 367, 372-75.)
The common thread in these decisions is that both the public and the defendant must not have any reason to question the fairness or objectivity of counsel involved in criminal prosecutions. Both these ends are best served when counsel in the fact situation presented here make a proper disclosure to the respective client and obtain a written consent to the representation. Otherwise, as indicated in the ethics opinions from the other states cited in footnote 2 above, the situation could pose a classic "appearance of impropriety" scenario, pregnant with the possibilities for misunderstandings by the accused and the public. Moreover, the situation presents, absent such disclosure and consent, a very strong likelihood of creating a case of apparent prejudicial error which would impel a reviewing court to reverse any resulting conviction or guilty plea. That would be manifestly unfair to all parties concerned - the accused, the People, and the courts.
Although no California case has yet considered the situation of criminal defense counsel being married to the prosecutor, a very recent Court of Appeal case (People v. Jackson (1985) 167 Cal.App.3d 829) has applied the above "appearance of impropriety" rule to the situation of the defense attorney in a "dating" relationship with the prosecutor. In that case, the defense attorney was not engaged to or living with the assistant district attorney but had been seeing her on a regular social basis for several months prior to the representation in question. This relationship was not disclosed to the defendant or the court (although the trial court was informed after the trial and before sentencing). The Court of Appeal specifically found that no confidential defense information was disclosed and that the defense counsel believed he had no disabling conflict of interest, and no actual prejudice to the defendant was disclosed.
Nevertheless, the Jackson court reversed the resulting conviction due to defense counsel's failure to disclose the relationship and the lack consent by the defendant after disclosure. The Court of Appeal, after citing the above line of cases wrote:
"As distinct from parties to casual social contacts (see Cohn v. Rosenfeld (9th Cir. 1984) 733 F.2d 625, 631), those who are involved in a sustained dating relationship over a period of months are normally perceived, if not in fact, as sharing a strong emotional or romantic bond. (Cf. Comment, Ethical Concerns of Lawyers Who Are Related by Kinship or Marriage (1981) 60 Oregon L. Rev. 399, 400.) Such an apparently close relationship between counsel directly opposing each other in a criminal prosecution naturally and reasonably gives rise to speculation that the professional judgment of counsel as well as the zealous representation to which an accused is entitled has been compromised. (See Comment, Developments-Conflicts of Interest (1981) 94 Harvard L.Rev. 1244, 1291, fn. 38.) No matter how well intentioned defense counsel is in carrying out his responsibilities to the accused, he may be subject to subtle influences manifested, for example, in a reluctance to engage in abrasive confrontation and trial advocacy. (See Rhodes, supra, 12 Cal.3d at p. 184.)
A criminal defendant's 'right to decide for himself who best can conduct the case must be respected wherever feasible.' (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 615; see also, People v. Crovedi (1966) 65 Cal.2d 199, 208.) Accordingly, counsel involved in a potential conflict situation such as that disclosed by this record may not proceed with the defense without first explaining fully to the accused the nature of his relationship with opposing counsel and affording the accused the opportunity, if he so desires, to secure counsel unencumbered by potential divided loyalties.
Given the nature of the relationship shown here, the absence of disclosure inevitably fuels informed speculation as to the existence of a disabling conflict. Defendant is then left with no recourse but to impugn the loyalty and adequacy of his appointed counsel. (Rhodes, supra, at p. 183.) Since the situation created by counsel's lack of disclosure defies its quantification, actual prejudice need not be shown by defendant is a condition to relief. A potential if not an actual conflict has been demonstrated and thus appearance, at least, of impropriety. In these circumstances, we are foreclosed from 'indulg[ing] in nice calculations as to the amount of [resulting] prejudice.' (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 612.)" [footnotes omitted.]
The Committee concludes that, a fortiori, failure to disclose a marital relationship between the defense counsel and the prosecutor and to obtain client consent would probably lead to serious legal issues upon any appeal.
Given the particular role of a public defender (or any criminal defense attorney) in protecting the rights of the accused, if both attorneys are to remain on the same case, the defense attorney spouse should ensure that the prospective client is fully informed of that attorney's marital relationship to the prosecutor and of the client's absolute right to have a different defense attorney assigned or appointed to conduct the accused's representation. (See People v. Jackson, supra, 167 Cal.App.3d at p. 829.) If the client elects to give such a consent to the public defender spouse, that attorney should be satisfied that such consent was given in a knowing and intelligent fashion. (See Johnson v. Zerbst (1938) 304 U.S. 458.) That may require some explanation to illustrate for the client the possible hazards for the client that, at least theoretically, might lie within the existence of such a marital relationship.
The Committee expressly presumes that the public defender spouse, would in good faith attempt to comply with all ethical obligations in these regards. The Committee is also cognizant of normal husband-wife interactions and discussions, particularly when they are both professionals involved in the same field of practice and, as postulated here, appearing daily before the same judges in similar or even related cases. The client should simply be made aware of the possibility of an accidental and wholly unintended slip which might conceivably impair his or her case. The A.B.A.'s Formal Opinion 340 refers, for example, to a telephone message left for the attorney at home. Disclosure should therefore cover the potential dangers of such inadvertent communication of client confidences or unconscious deference to or consideration for the district attorney spouse.
A comparably full and candid disclosure by the prosecutor spouse should be made as well, which, in that attorney's case, should be made directly to the District Attorney of the county.3 We base this conclusion upon our own prior ethics opinion.
This Committee has previously considered whether any government official may give a consent to waive some apparent conflicts of interest under R.P.C. 4-101 and 5-102(B). (Formal Opinion 1981-63.) That opinion of this Committee relied upon California Attorney General's Opinion 61 Ops. Cal. Atty. Gen. 18 (1978) in concluding that a city could consent and thereby waive apparent conflict of interest under those rules when a city councilman-attorney represented a tort plaintiff against that city, although the Committee's opinion ultimately concluded there was another non-waivable ethical obstacle. What this Committee said in 1981-63 bears repeating here:
"Consent is a discretionary decision no different in kind or effect from numerous other discretionary decisions made by public officials, such as the decisions whom to hire as attorney for the public and whom to sue. The public entrusts such decisions to their officials. There is nothing in the Rules of Professional Conduct or in case law which would prohibit officials from providing the consent required by rule 4-101 or 5-102(B) of the Rules of Professional Conduct."
We affirm this conclusion and apply it herein as well: the District Attorney, after being fully informed of the marital relationship and of the potential risks to the People's case, may give the consent on behalf of the People required for the deputy district attorney spouse to prosecute an accused represented by that deputy's spouse.
There is no clear statutory or ethical requirement for court approval of the representation after disclosure has been made and the client's written consent has been obtained. However, People v. Jackson, supra, 167 Cal.App.3d at p.833, suggests in a footnote that such approval may also be necessary as a matter of constitutional due process:
"The Maxwell and Mroczko decisions indicate that court-supervised consent may also be necessary where potential conflicts of interest threaten to impinge on an accused's fight to effective counsel."4
This Committee must caution all attorneys involved in this precise situation (including the supervising district attorney and public defender of the two spouses) to examine the judicial authorities cited in section (3) above. Although none addresses the precise postulated facts here, all have adopted a stringent "appearance of impropriety" standard in criminal cases. As noted in footnote 3, in every other jurisdiction examined by this opinion where such an appearance of impropriety" rule was applied, such a direct confrontation between counsel married to one another, even with disclosure and consent, was forbidden. Prudence may therefore dictate that, despite the apparent ability of both the affected parties--the accused and the People, as represented by the district attorney--to give a valid consent, one or the other spouse should decline the matter, simply to avoid creating an unnecessary issue for counsel, the parties, the trial court and, ultimately, the reviewing courts. Indeed, the supervisors of such married attorneys may well wish to arrange the schedules or assignments of these attorneys so they will not have to oppose one another.
If that arrangement is not feasible and one of the spouses must be excused from a particular case, one pragmatic approach to determining which spouse should decline the case is to assess which spouse has the later or lesser involvement therein. For example, if the prosecution spouse has already been supervising a major investigation for several months which results in a prosecution, the defense of which is then assigned to the public defender spouse for the first time, it would be more reasonable and equitable for the public defender spouse to step aside. Conversely, if the public defender spouse has had extensive contact with the defendant or the defendant's case previous to the assignment of the prosecutor, the prosecutor spouse should decline the case. Where neither spouse has had any extensive contact with the defendant or the case previously, either one may elect to decline such representation.
Unlike the first situation above, in this case there is no direct confrontation between the spouses. A colleague of the district attorney spouse is to be the prosecutor in the matter. The district attorney spouse under this hypothetical situation, has no involvement whatever with the particular case. Accordingly, neither the public defender spouse nor the district attorney spouse's colleague handling the prosecution has, in our view, a sufficient "relation" to trigger any ethical duties. The link to the adverse party via the district attorney spouse's marriage is simply too attenuated to warrant application of any disclosure and consent requirements. However, assuming that the colleague knows of the marital relationship between the public defender spouse and the district attorney spouse, the colleague should take care not to discuss the case with the district attorney spouse or to make any disclosures to that spouse which might inadvertently be recommunicated to the public defender spouse.
In this regard, we distinguish those authorities which stand for the general proposition that the knowledge or disqualification of a single attorney in a law office is presumptively imputed to all other attorneys in that law office. (See e.g., Younger v. Superior Court, supra; A.B.A. Formal Opinions 33 and 49; Los Angeles Formal Opinions 377 (1978) and 242 (1957); 59 Ops.Cal. Atty.Gen. 27 (1976).) In the specific hypothetical situation at issue here, the deputy district attorney spouse has neither knowledge nor involvement in any degree; hence, there is no initial basis from which to impute any obligation to the other prosecutors in the district attorney spouse's office. (Compare In Re Charles L. (1976) 63 Cal.App.3d 760, 764-65; Love v. Superior Court, supra.) A different case, as in Younger, might be presented where the prosecutor spouse, though not directly involved, might be a supervisor of the colleague or otherwise in a position to know about or influence the case being handled by the public defender spouse. This latter case could possibly force one of the affected offices to be removed entirely from the case.
This is the converse situation of situation No. 2 above. As in the prior case, it is the Committee's opinion that the relationship between the colleague of the public defender spouse and the deputy district attorney spouse is too remote to justify imposing any disclosure and consent requirements. And, assuming that the public defender spouse has had no knowledge of or involvement in the case being prosecuted by the deputy district attorney spouse, there is no basis upon which any imputed duty of disclosure and consent might flow from the public defender spouse to that spouse's colleagues in the public defender's office. Similarly, the deputy district attorney spouse has no such duty since there is no relationship of significance with the actual defense counsel.
As with the other situations described herein, the colleague of the public defender spouse, knowing of that attorney's marital relationship to the prosecutor, should take all reasonable precautions to avoid discussion or other disclosure of anything pertaining to the case to the public defender spouse, lest there be any unintended relay of such information to the district attorney spouse.
In situations No. 2 and 3 above, this Committee was of the view that where a spouse and the colleague of a spouse were opposing counsel, there is no basis to apply any disclosure or consent rule to the colleague because the relation, if any, to the adverse counsel is too attenuated to warrant any such rule. It follows, a fortiori, that where the case involves only colleagues of the two spouses, there is no conflict of interest to trigger the disclosure and consent requirements we have described above. Neither colleague of the spouses has any such obligation solely by virtue of the existence of the marriage between the uninvolved public defender and the uninvolved district attorney.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 A codified expression of this duty may be found in Business and Professions Code section 6068, subdivision (e), which provides in relevant part: "It is the duty of an attorney.... To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."
2 In calling attention to Rule of Professional Conduct ("R.P.C.") 5-102(A), the Committee notes that California attorneys, in general, are governed by an "actual conflict"-type rule only and not by an "actual or appearance of conflict"-type rule followed in many other jurisdictions on the model of the former A.B.A. Code of Professional Responsibility ("A.B.A. Code"). Thus, for example, Canon 9 of the A.B.A. Code stated: "A lawyer should avoid even the appearance of impropriety." California has no statutory or regulatory analog to the so-called "appearance of impropriety" provisions found in other states, so that conduct which might be forbidden elsewhere in the United States under such provisions may be permitted here under the R.P.C.
The ethical issues reviewed in this opinion have been considered by the ethics committees of a number of other state bars who are governed by an express "appearance of impropriety" standard. Those committees have determined that such a standard act to bar the representation of either the accused or the government or both by attorneys who are so related by marriage. (See e.g., Arizona Op. No. 73-6 (1973) [impermissible in all four situations]; New Jersey Ops. No. 288 (1974) [impermissible for wife to practice criminal law in state where husband is deputy attorney general with criminal appellate division] and 237 (1973) [impermissible for wife to practice criminal law in county where husband is assistant prosecutor J; New York Op. No. 409 (1975) [impermissible for assistant district attorney and assistant public defender married to one another to work on same case; they may otherwise handle cases not in direct opposition to one another]; Oregon Op. No. 281 (1975) [same result as New York opinion].) (See also, Note "Legal Ethics Representation of Differing Interests by Husband and Wife: Appearances of Impropriety and Unavoidable Conflict of Interest?," (1975) 52 Denver L. J. 735, 747-48.) These opinions from other states have been reviewed by the Committee as background for its own consideration of the issues posed, but the fundamental distinguishing factor bears repetition: California has not followed the A.B.A. pattern and does not have an "appearance of impropriety" standard with respect to its disciplinary rule on conflicts of interest. Hence, the ethics opinions just cited are not directly relevant, much less controlling, authorities for California attorneys.
3 In the event the affected prosecutor should be the District Attorney himself or herself, the disclosure should be made to the Attorney General. See Government Code section 12550, which provides:
"The Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge.
When he deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process."
4 See People v. Maxwell (1982) 30 Cal. 3d 606, 621-622, and People v. Mroczko (1983) 35 Cal.3d 86, 115.
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