Can an assistant district attorney keep prosecuting when her spouse is a Superior Court judge in the same community?

Plain-English summary

The Committee responded to an assistant district attorney whose husband had been appointed to the Superior Court in the same community, and who wished to continue prosecuting if doing so posed no ethical problem for her or for him. She proposed a set of safeguards: she would not appear in her husband's court or on any case assigned to him (and he could not sit on any case in which she had appeared for the State); cases assigned to him would be marked on the office files so she would not look at them or discuss them with other lawyers in the office; the case would not be discussed at home or elsewhere; and for matters prosecuted by other lawyers in her office and assigned to him, his relationship to her would be explained to the defendant on the record, leaving the defendant free to challenge the court for cause without affecting any peremptory challenge.

The opinion concluded it could find no provision in the Code of Professional Responsibility making the mere fact of that marriage a violation, on the assumption that the outlined safeguards are scrupulously observed, while noting that in other factual circumstances similarly designed safeguards would be necessary. On these facts it concluded the arrangement did not violate DR 5-101 or DR 5-105 (conflicts and imputed disqualification) or DR 9-101, and that the admonitions of EC 9-2 were fully observed by the proposed conditions.

Currency note

This opinion was issued in 1982, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis, including the modern treatment of personal-interest conflicts and judicial disqualification. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or safeguard mentioned here.

Common questions

Q: Is it a per se ethics violation for a prosecutor to be married to a judge in the same community?

A: The opinion concluded the mere fact of the marriage does not violate the Code, assuming the proposed safeguards are scrupulously observed.

Q: What safeguards did the opinion treat as sufficient?

A: The opinion accepted that the prosecutor would not appear before her judge spouse or on his cases, his cases would be marked and not discussed in the office or at home, and the relationship would be disclosed on the record to defendants in cases his court handles.

Q: Could the defendant still object to the judge?

A: Under the proposed conditions, the relationship would be explained to the defendant on the record, leaving the defendant free to challenge the court for cause without affecting any peremptory challenge.

Background and rules framework

The opinion applied the former Code's conflict and imputation rules (DR 5-101, DR 5-105) and the rule on avoiding the appearance of impropriety (DR 9-101, EC 9-2), the conflict subject now treated by Model Rule 1.7 (personal-interest conflicts), to a relationship-based conflict between a prosecutor and a judge spouse.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-101, DR 5-105 (conflicts of interest; imputed disqualification) (cf. Model Rule 1.7)
• DR 9-101, EC 9-2 (avoiding the appearance of impropriety)

See also

• Alaska Ethics Op. 84-3: Advice to Witnesses in a Criminal Case
• Alaska Ethics Op. 99-2: Municipal Attorney Advising a Quasi-Judicial Board
• Alaska Ethics Op. 88-5: Judge Letter Supporting Judicial Retention

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/82-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 82-2
Propriety of an Assistant District Attorney Retaining Position when the
Spouse is a Judge.
The Committee has been asked the following question:
My husband has recently been appointed to the Superior Court bench. I
am employed as an Assistant District Attorney in the same community. I would
like to continue in the District Attorney's Office if it does not present a problem
of ethics for myself or my husband.
I believe the following procedures would be necessary for me to continue
prosecution on a regular basis:

1. I would not appear in my husband's court, nor in any respect on cases
   assigned to him; for example, I could not have appeared at a preliminary
   hearing in District Court on a case ultimately assigned to him; obviously, the
   reverse of the situation would apply my husband could not sit on any case in
   which I have made an appearance for the State. The method this office uses for
   assigning cases makes this relatively practical;
2. Cases assigned to my husband would be noted on the outside of our
   files (by some sort of marking system) and I would not look at the file or
   discuss the case with the other lawyers in my office;
3. As in any case assigned to my husband, civil or criminal, we would not
   discuss the case at home or anywhere else;
4. For those criminal matters prosecuted by the other lawyers in my
   office and assigned to my husband, his relationship with me should be
   explained to the defendant on the record, and the defendant should have the
   decision as to whether he or she wishes to challenge the court for cause; in
   other words, not affecting the defendant's right to a peremptory challenge.
   The Committee can find no provision in the Code of Professional
   Responsibility which would make the mere fact of marriage between a Superior
   Court judge and a member of the District Attorney's office a violation of the
   Code, on the assumption that the safeguards outlined in the question are
   scrupulously observed. In other specific factual circumstances, of course,
   similarly designed safeguards would be necessary. In these circumstances,
   however, the Committee does not feel that it constitutes a violation of DR 5101
   or 5105, or a violation of DR 9101 for either the judge or the assistant district
   attorney to continue with their respective employments. In our view, the
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admonitions of EC 92 are fully observed by the conditions suggested in the
question.
Adopted by the Board of Governors on February 5, 1982

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