Ethics Opinion

Opinion No. 95-3

March 1995

Summary: A close family member of a district attorney is not automatically disqualified from defending criminal cases within the district attorney's county. Consent of the criminal defendant will be effective to avoid disqualification in many cases. The district attorney normally should recuse herself in any such case, but if she screens herself off from participation, a member of her office may handle the matter. If the district attorney chooses not to recuse herself from a case defended by her relative, it is appropriate for the district attorney to seek court approval for her participation.

Facts: We have had several inquiries about the ability of family members to practice law within the geographical jurisdiction of a government attorney who is related to them. We have combined the facts of these inquiries into the following setting. A district attorney has inquired whether members of her immediate family--parents, siblings, and children--are precluded from practicing criminal law in the county in which she serves. She was formerly associated with them in private law practice but severed all professional relationships with them when she became district attorney.
Discussion: There is nothing in the Disciplinary Rules that would automatically bar a family member of a district attorney from practicing criminal law in the geographical area under that district attorney's jurisdiction or, more particularly, from representing criminal defendants in cases prosecuted by her office.
In our Opinion 76-26, we addressed a similar question in the context of a father whose son was appointed an assistant district attorney. We there advised that the father could not appear in any matter in which his son or an associate of his son in the district attorney's office appeared on the other side. There are two differences here. It was critical to our advice in Opinion 76-26, that the father and son retained a professional relationship during the son's service in the district attorney's office. Under DR 5-105(D), the father was vicariously disqualified from handling any matter in which the son would be disqualified from appearing against the district attorney's office. Such a continuing relationship is not present in the current inquiry.
On the other hand, the district attorney has supervisory responsibility over all matters in her office. The crux of the inquiry is whether a closely-related member of the district attorney's family may represent a defendant being prosecuted by her office. The only Disciplinary Rule that addresses that issue directly is DR 5-101(A), which provides:
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.
The committee has taken the position in other opinions that there are extreme situations under DR 5-101(A) where the effect on the lawyer's professional judgment seems so great that representation ought not be permitted even with consent. See Opinion 86-1. The committee does not believe that the existence of a blood relationship between the lawyers by itself presents such an extreme situation that consent by a prospective client of the family member cannot cure the problem, at least in many cases. Thus, although one may decide that the family relationship combined with a recent professional association "might" reasonably affect the family member's independent judgment on behalf of a client, the committee concludes that in many, if not most, cases client consent will cure the problem. We cannot imagine all possible factual circumstances, however, and so we are not prepared to say that there will never be sufficiently compelling factual circumstances in which consent may not cure the problem. Moreover, in any given factual situation, the family member might decide that the effect on his or her independent professional judgment would be so great that he or she could not give competent representation. In such a case, consent would not be effective.
As far as consent is concerned, the Disciplinary Rule speaks to consent "after full disclosure." That will involve discussion by the family member with a prospective client of all the ways in which his or her professional judgment might be affected by the relationship with the district attorney. Given the difficulty that some clients may have in remembering the nature of a particular disclosure, the family member should consider putting all such disclosures in writing and obtaining the client's written consent.
The district attorney will also have a problem with respect to any case in which her family member is representing a defendant being investigated or prosecuted by her office. It is not apparent to us that there is anyone who might give an effective consent to her participation in the matter. Moreover, in the case of a public official, there is the problem of perception of favoritism, and the committee believes that when public officials are concerned, Canon 9's prohibition of "even the appearance of impropriety" has special force. For these reasons we advise that the district attorney should normally recuse herself from participation in any matter under her jurisdiction in which a family member is representing an adverse party.
We have previously advised that for public policy considerations, a whole district attorney's office should not be disqualified when one member of the office is disqualified. Opinion 79-4. For similar reasons, we believe that the district attorney could deal with the problem presented in this inquiry by screening herself from participation in any matter in which a family member is representing a defendant and by delegating complete responsibility to someone else in her office.
There may be instances when the district attorney believes that the particular case involves a matter of such public importance that she should participate in it if possible. In such a case, she might well pursue one of two courses of action in the court in which the case is pending. She might argue that in the circumstances of the case there is no absolute prohibition against her involvement in the matter and that court approval may supply the necessary consent to her participation. Or if there is a prohibited conflict, she might seek to have the court disqualify the close family member on the ground that she should be preferred because of the importance of having the elected public official participate and because her representation of the commonwealth in this matter was prior in time to the hiring of the close family member by the defendant. It would be up to the court to weigh the opposing arguments if such a motion were made. While there are some rulings that a court might make that would not resolve the district attorney's ethical dilemma, we cannot address all possibilities in this opinion.
One final point under the Disciplinary Rules should be made. DR 9-101(C) speaks to a lawyer's implying that "he is able to influence improperly or upon irrelevant grounds any ... public official." The family member should be careful not to violate this rule.
In giving this advice, we have addressed only matters of interpretation of the Disciplinary Rules. We are not permitted to give advice with respect to matters of substantive law, and so we have not considered the applicability of c.268A or any other statute.

Permission to publish granted by the Board of Delegates on June 2, 1995. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.