Can a close family member of a district attorney defend criminal cases prosecuted by that DA's office?
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This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A district attorney asked whether her immediate family, parents, siblings, and children, were barred from practicing criminal law in the county she served and from representing defendants prosecuted by her office. She had formerly practiced privately with them but severed all professional relationships when she became DA.
The committee found nothing in the Disciplinary Rules that automatically barred a DA's family member from such practice. It distinguished its Opinion 76-26 (a father barred from appearing opposite his son in the DA's office), which had turned on a continuing professional relationship triggering vicarious disqualification under DR 5-105(D); no such relationship existed here. The only rule directly addressing the family member's position was DR 5-101(A), which barred accepting employment, absent client consent after full disclosure, where the lawyer's professional judgment may be affected by personal interests. The committee held that a blood relationship by itself was not the kind of extreme situation in which consent cannot cure the problem, so in many or most cases the prospective client's informed consent would cure it. It noted consent might be ineffective in unusually compelling circumstances, or where the family member concluded the effect on judgment was too great to give competent representation, and suggested the family member put disclosures and consent in writing.
As to the DA, the committee saw no one who could give effective consent to her participating in a matter her relative was defending, and stressed that public officials face the heightened concern of perceived favoritism, giving Canon 9's "appearance of impropriety" prohibition special force. It advised that she should normally recuse herself, and, drawing on its Opinion 79-4 (one member's disqualification does not disqualify the whole office), that she could screen herself off and delegate full responsibility to another in her office. For a case of special public importance, she might ask the court to approve her participation or to disqualify the relative instead, leaving the weighing to the court. The committee also cautioned the family member against implying improper influence over a public official under DR 9-101(C), and noted it could not address statutes such as G.L. c. 268A.
Currency note
This opinion was issued in 1995, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Is a DA's relative automatically barred from defending criminal cases in the DA's county?
A: No. The committee found nothing in the Disciplinary Rules that automatically disqualified a DA's family member from practicing criminal law in the county or from representing defendants prosecuted by the DA's office.
Q: Can client consent cure the conflict for the family member?
A: In most cases, yes. Under DR 5-101(A), the committee concluded a blood relationship alone was not an extreme situation barring consent, so a prospective client's consent after full disclosure would usually cure the problem, though not in every conceivable circumstance.
Q: What should the district attorney herself do?
A: The committee advised the DA normally recuse herself, because of the appearance of favoritism, and screen herself off while delegating the matter to another lawyer in her office. For a case of special public importance she could seek court approval to participate or ask the court to disqualify the relative instead.
Background and rules framework
The opinion applied the predecessor disciplinary rules DR 5-101(A) (declining employment where the lawyer's personal interests may affect professional judgment, absent client consent), corresponding to Model Rule 1.7's personal-interest conflict provision, and DR 5-105(D) (vicarious disqualification within a firm), corresponding to Model Rule 1.10. It also invoked Canon 9 (appearance of impropriety) and DR 9-101(C) (implying improper influence over a public official), and cross-referenced Opinions 76-26 and 79-4.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / DR 5-101(A) (personal-interest conflict; consent after full disclosure)
- Model Rule 1.10 / DR 5-105(D) (vicarious disqualification)
- Canon 9 / DR 9-101(C) (appearance of impropriety; improper influence over a public official)
Other opinions cited:
- MBA Opinion 76-26 (father barred from appearing opposite son in the DA's office)
- MBA Opinion 79-4 (one member's disqualification does not disqualify the whole office)
See also
- MA Bar Ethics Op. 03-1: City lawyer opposing a former official
- MA Bar Ethics Op. 96-2: Concurrent conflict in two criminal cases
Source
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