1995-10

QUESTION:

“I have recently passed the July 1995 bar exam and have
taken a position as an Assistant District Attorney in ABC
County, Alabama. My older brother, who is also an attorney,
does a lot of criminal defense work in the circuit in which
I am a prosecutor. Due to the heavy case load and number of
cases that come through the District Attorney’s office it
is inevitable that at sometime or another we would be on
opposite sides of the same case. For this reason I would
like to make a request for a formal opinion.

My question is: Is there a conflict of interest, an ethical
issue or any violation of the rules of professional
responsibility for me as a prosecutor to try a case or
negotiate a plea agreement at the juvenile, district, or
circuit level when counsel for the defendant is the
prosecutor’s sibling?”

ANSWER:

You may represent the State as prosecutor in criminal cases
defended by your brother only if both the District
Attorney’s Office and your brother’s client(s) give their
informed consent to such representation.

DISCUSSION:

Rule 1.8(1) of the Rules of Professional Conduct provides
as
follows:

“Rule 1.8 Conflict of Interest:
Prohibited Transactions

* * *

(i) 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.”

Pursuant to the above-quoted rule, you may not prosecute
cases in which your brother is defense counsel unless all
the parties to the proceeding give their informed consent.
Please note that the consent, particularly the consent of
your brother’s clients, may be obtained only “after
consultation regarding the relationship”. Therefore, your
brother should make a concerted effort to insure that his
clients fully understand his relationship to you and the
implications or ramifications this relationship may have
for the clients’ effective defense. If such consent is
obtained, the Rules of Professional Conduct allow you to
prosecute cases defended by your brother. However, because
these circumstances are so fraught with the potential for
conflict, it is the recommendation of the Disciplinary
Commission that every effort should be made to avoid
placing
yourself in this situation. Where at all possible it would
be preferable for another member of the District Attorney’s
staff to prosecute cases defended by your brother.

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