If a criminal-defense investigator is married to a county forensic investigator working the same case, can the defense investigator work on it?

Plain-English summary

The inquiry concerned a conflict arising when a criminal-defense investigator (or mitigator) is married to a county forensic investigator and both are working the same case. The committee noted that although the inquirer is a nonlawyer, the inquirer was acting at the direction of a lawyer, which brought the question within the committee's rule of responding only to members of the Washington State Bar.

The committee determined that under RPC 1.8(i), 1.7(b), 1.4, and 5.3, the nonlawyer's supervising lawyer is obliged to make reasonable efforts to ensure the nonlawyer is not engaged in a conflict of interest that would be prohibited to the supervising lawyer. Drawing on RPC 1.8(i) by analogy and reading it together with RPC 1.7(b), the committee concluded that the nonlawyer would not be permitted to work personally on cases the nonlawyer's cohabitant is working for the Sheriff's office, unless the supervising lawyer concludes that the representation of the defendant would not be adversely affected and the supervising lawyer obtains informed consent from the client.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. The cited RPC 1.8(i) corresponds to the former ABA Model Rule 1.8(i) on lawyers related to one another (parent, child, sibling, or spouse); that black-letter provision was removed in the 2002 revisions and the concept now appears in the comments to Model Rule 1.7. RPC 1.4, 1.7, and 5.3 correspond to ABA Model Rules 1.4 (communication), 1.7 (conflicts of interest), and 5.3 (responsibilities regarding nonlawyer assistance).

Common questions

Q: Can a defense investigator work a case when a spouse is investigating it for the opposing side?

A: Not personally, the committee concluded, unless the supervising lawyer determines the defendant's representation would not be adversely affected and obtains the client's informed consent.

Q: Whose obligation is it to police that conflict?

A: The supervising lawyer's. Under RPC 1.8(i), 1.7(b), 1.4, and 5.3, the lawyer must make reasonable efforts to ensure the nonlawyer is not engaged in a conflict that would be prohibited to the lawyer.

Q: Why did the committee answer a nonlawyer's question?

A: Because the inquirer, though a nonlawyer, was acting at the direction of a lawyer, which brought the inquiry within the committee's rule of responding only to members of the Washington State Bar.

Background and rules framework

The opinion applied Washington RPC 1.4 (communication), RPC 1.7(b) (conflicts of interest), RPC 1.8(i) (then the rule on lawyers related to one another), and RPC 5.3 (responsibilities regarding nonlawyer assistance), corresponding to ABA Model Rules 1.4, 1.7, the former Model Rule 1.8(i), and 5.3. The committee reasoned by analogy from RPC 1.8(i), read with RPC 1.7(b), and placed responsibility on the supervising lawyer under RPC 5.3 to make reasonable efforts to prevent the nonlawyer's conflict.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.4 (communication); Washington RPC 1.4
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(b)
• Former ABA Model Rule 1.8(i) (lawyers related to one another; removed from the black-letter rule in 2002); Washington RPC 1.8(i)
• ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistance); Washington RPC 5.3

See also

• WA Ethics Op. 1793: Office-Sharing and Adverse Clients
• WA Ethics Op. 1807: LLC Counsel vs. a Minority Member
• WA Ethics Op. 1335: Paralegal-Company Fee-Split Plan

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1004

Original opinion text

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

Advisory Opinion: 1811
Year Issued: 1998
RPC(s): RPC 1.4; 1.7(b); 1.8(i); 5.3
Subject: Conflict of interest; defense investigator married to county forensics investigator investigating the same case

The Committee researched and reviewed your inquiry concerning the conflict occurring when defense investigator/mitigator who is married to county forensic investigator are investigating the same case and determined the following:

Although the inquirer is a nonlawyer, the inquirer was acting at the direction of a lawyer, thereby coming within the ambit of the Committee rule allowing response to members of the Washington State Bar only. Under RPC 1.8(i), 1.7(b), and 1.4 and 5.3, the inquiring nonlawyer's supervisor is obliged to make reasonable efforts to ensure that the inquirer is not engaged in a conflict of interest that would be prohibited to the supervising lawyer. In our view, drawing on RPC 1.8(i) by analogy and reading it in connection with RPC 1.7(b), the nonlawyer would not be permitted to work personally on cases on which the inquirer's cohabitant is working for the Sheriff's office, unless the supervising lawyer concludes that the representation of the defendant would not be adversely affected and the supervising lawyer obtains informed consent from the client.