UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-28
Lawyer X is an employee of the State and represents the State at the appellate level in criminal matters. X does not actively participate in the trial of cases handled at the appellate level. As an appellate lawyer, X's discretion and authority is very different from that of the prosecutor at the trial level. X has no discretion regarding the filing of charges, the nature of the charges, the dismissal or reduction of charges, the acceptance or terms of a plea, parole eligibility or the terms and conditions of confinement. X's duty is to present all legal arguments to the appellate courts to persuade those courts to uphold the convictions in cases assigned to X.
Lawyer Y is the spouse of X. Y is a trial lawyer handling criminal matters both at the trial and appellate levels in the same state as X. Since X does not participate at the trial level, X and Y will never appear on opposite sides at that stage. However, X and Y could appear on the opposite sides of the same criminal case at the appellate level.
Questions:
May Y represent the defendant and X represent the state on appeal in the same case?
If an ethical problem is presented by X and Y appearing on opposite sides of the same appeal, can that problem be resolved?
Summary:
Rule 1.8(i) of the S.C. Rules of Professional Conduct permits representation of adverse clients by spouses only when adequate consent has been obtained. The appellate nature of the practice does not remove all potential for conflict between the personal interests of the lawyer and the interests of the client. Therefore, the rule is equally applicable in the circumstances described.
Opinion:
Rule 1.8(i) provides that when Lawyer A is married to Lawyer B, Lawyer A "shall not personally represent a client in a representation directly adverse to a person" who Lawyer A knows is represented by Lawyer B "except upon consent by the client after consultation regarding the relationship." Thus, in the situation presented, lawyers X and Y could not personally represent clients with adverse interests in the same matter without the informed consent of each client. See also State Bar of California Op. No. 1984-83.
The appellate nature of the representation should not affect the result under Rule 1.8. Although an appellate lawyer may have fewer opportunities in which to exercise discretion, "it must also be recognized that the relationship of husband and wife is so close that the possibility of an inadvertent breach of a confidence ... is substantial." ABA Formal Op. 340 (Sept. 23, 1975). There also is concern that "the interest of one of the marriage partners" may create a "financial or personal interest that reasonably might affect the ability of a lawyer to represent his or her client with undivided loyalty and free exercise of professional judgment." Id.
These risks exist at the appellate level as well as at the trial level. There is a risk that an appellate lawyer may subtly alter an argument or fail to pursue a point as aggressively as required in order to avoid embarrassment of or conflict with an opposing spouse. This would be particularly true, for example, if the lawyer for the State were arguing that the spouse, as trial counsel for the defendant below, had erred in failing to protect a point of appeal. In light of these concerns, we find no reason to limit the application of Rule 1.8(i).