OfflineA certain defense attorney and a certain prosecutor are participating in a criminal case.The prosecutor is prosecuting the case and the defense attorney (public defender) is defending the defendant in this jury trial.The relationship which exists between the prosecutor and the defense attorney is quite interesting.It seems these two people attended law school together in Lansing, Michigan.They started at same time and graduated at same time and were in the same small class.Upon graduation they just happen to relocate to the same location,work in the same county,state and very same court.Conveniently, these two people represent opposite interests in criminal law proceedings on a regular basis.While attending Thomas M Cooley law school in Lansing Michigan from 2002 to 2005 these two just happened to live right next door to each other.Sources in Lansing indicate the relationship between these two people was at the least very close.It is well known they spent a lot of time together.I'm not going to make any deductions but you go figure.What I really want to know is whether this scenario constitutes impropriety,misconduct or conflict of interest in any way with regard to their professional conduct in this court of law where they practice?Thanks for all the help I can get.
November 21, 2009
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Impropriety, prejudice, misconduct, ethics, etc
Posted on: Thu, 04/16/2009 - 01:01
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I am not an expert on North Carolina law, nor can I can give you specific legal advice, but I can tell you that absolute fidelity may be the most fundamental characteristic of the attorney-client relationship. The North Carolina State Bar Rules of Professional Conduct, Rule 1.7, Comment 1, states: "Loyalty and independent judgment are essential elements in the lawyer's relationship to a client". In an effort to uphold the attorney-client fiduciary relationship, North Carolina State Bar Rules of Professional Conduct, Rule 1.7, Comment 11, provides:
"When lawyers representing different clients in the same matter are closely related by marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent."
The above quoted Rule of Professional Conduct is 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 North Carolina attorneys, they are often useful guidelines. The A.B.A. has stated, "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."
Although the North Carolina Rule does not explicitly state whether the existence of an intimate relationship between opposing attorneys must be disclosed, it is foreseeable that the North Carolina State Bar Ethics Committee could consider this type of a relationship a conflict of interest -perhaps resulting in disciplinary actions. However, in consideration of a criminal appeal, the possibility of conflict is insufficient to impugn the conviction. "In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, (1980).