Can a lawyer represent criminal defendants in the county where the lawyer's spouse is the sheriff, and does the conflict spread to the rest of the firm?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-85-2 asked whether a lawyer may represent criminal defendants in the county where the lawyer's spouse is the sheriff. Drawing on its Formal Opinion E-80-6 (two lawyers married to each other), the committee noted that the only situation implicitly prohibited in all circumstances is one lawyer-spouse representing interests and appearing against the other lawyer-spouse.
The committee concluded that a lawyer-spouse representing criminal or traffic defendants when the sheriff-spouse is directly involved (conducting or supervising the investigation) is not expressly prohibited by the Code, but the lawyer should be aware of potential problems in exercising independent professional judgment. Former SCR 20.24(1) governs: so long as the lawyer fully informs the client of the possible adverse effect on professional judgment and the client consents, there is no ethical bar to the representation.
The committee added that any conflict from the lawyer-sheriff relationship is personal to the lawyer-spouse and does not affect other attorneys in the firm (citing Memorandum Opinion 9/77C and the comment to Model Rule 1.8(i) that such disqualification is personal and not imputed to firm members). Other firm members handling criminal or traffic cases in which the sheriff is directly involved should inform clients that the lawyer-spouse is an associate of the firm so the clients can make an informed choice about retaining the firm (citing ABA Formal Opinion 340).
Currency note
This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Personal-interest conflicts are now governed by SCR 20:1.7 / Model Rule 1.7, and the rule that personal-interest conflicts are not imputed to the firm appears in SCR 20:1.10 / Model Rule 1.10(a). 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 Treat this page as historical context, not current guidance.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: Can a defense lawyer take cases investigated by a sheriff who is the lawyer's spouse?
A: The committee concluded there is no ethical bar so long as the lawyer fully discloses the possible effect on professional judgment and the client consents.
Q: Does the conflict disqualify the lawyer's whole firm?
A: No. The committee concluded the conflict is personal to the lawyer-spouse and is not imputed to other firm members.
Q: What should other firm members do?
A: The committee stated other firm members handling cases in which the sheriff is directly involved should inform clients that the lawyer-spouse is an associate of the firm.
Background and rules framework
The opinion interpreted the former Code's self-interest conflict provision (SCR 20.24(1)) as applied to a lawyer married to a county sheriff, and treated the conflict as personal rather than imputed. Those principles are now found in SCR 20:1.7 / Model Rule 1.7 and the imputation rule SCR 20:1.10 / Model Rule 1.10, which does not impute most personal-interest conflicts to the firm.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.24(1) / Model Rule 1.7 (conflicts of interest; personal interests) (former Code provision)
- Model Rule 1.10 (imputation of conflicts; personal-interest exception)
Other opinions cited:
- Wisconsin Formal Op. E-80-6
- Wisconsin Memorandum Opinion 9/77C
- ABA Formal Opinion 340 (Sept. 23, 1975)
See also
- WI Ethics Op. E-86-1: Assistant DA With a Deputy Sheriff Spouse
- WI Ethics Op. E-89-3: Lawyer Spouses and Imputed Disqualification
- WI Ethics Op. E-88-7: Family Law Practice With a Social Worker Spouse
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-2.pdf
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