BOARD OPINION 2022-06 Issued June 10, 2022 Withdraws Adv. Op. 1993-7
Conflicts Arising out of Personal Relationships with Opposing Counsel
SYLLABUS: Spouses may not represent opposing parties without informed, written consent of the affected clients. When a prosecutor-spouse and criminal defense lawyerspouse are practicing in the same jurisdiction, the best practice is for the prosecutor’s office to assign another prosecuting attorney to the case and screen the prosecutor-spouse from any matter involving his or her spouse.
Other lawyers in the lawyer-spouse’s law firm may represent criminal defendants without disclosure and consent, so long as the lawyer does not have a close personal relationship with the specific prosecutor assigned to the case. The lawyer-spouse may represent criminal defendants without disclosure and consent so long as the lawyerspouse does not have a close personal relationship with the specific prosecutor assigned to the case. If a lawyer shares a close personal relationship with the prosecutor assigned, the lawyer must obtain informed written consent from the client.
Domestic partners, individuals in an intimate relationship, close friends, and roommates have the same duties as those in spousal relationships in evaluating potential conflicts of interest. Lawyers who are domestic partners or in intimate relationships are advised to adhere to the client consent and disclosure obligations applicable to married lawyers. Lawyers in other relationships should consider the characteristics present in the relationship and exercise professional judgment regarding client disclosure and consent.
At a minimum, a lawyer seeking client consent to a conflict should disclose any shared financial or personal interests, explain the fact that there is a presumption of confidences and loyalty between those in a personal relationship, and explain the risks of breach of the duty to loyalty and confidentiality based on that relationship. A written disclosure should contain the above information, the precise nature of the relationship giving rise to the to the conflict, and alternatives to the representation.
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