Does a prosecutor have to disclose a romantic relationship with a law enforcement officer who may be a witness in the prosecutor's cases?

Plain-English summary

A county prosecutor was in a romantic relationship with, and moving in with, a sheriff's officer. The sheriff's office referred cases to the prosecutor's office for criminal prosecution. The officer was not involved in any of the prosecutor's current cases, but it was likely the office would soon refer matters in which the officer had been an investigator and therefore a likely witness. The prosecutor asked what disclosure obligations the relationship created.

The committee said that if the prosecutor is not involved in any aspect of a prosecution touching the officer, disclosure appears not to be required. If the relationship could substantially limit the representation, the prosecutor must determine whether it would detrimentally affect the representation; if it would, the conflict cannot be waived, and if the prosecutor reasonably believes it would not, disclosure to and consent by the client are possible under RPC 1.7(b). The committee added that in most situations where the prosecutor is prosecuting and the officer is an anticipated testifying witness, the representation likely would be adversely affected and a non-waivable conflict would exist.

The committee concluded that in any case in which the officer may have participated in the arrest or investigation, and is thus a potential witness, the prosecutor must disclose the relationship to the court, parties, and opposing counsel under RPC 1.7(b). It declined to address whether such a conflict should be imputed to the entire prosecutor's office, because the inquirer did not raise it, and it declined to opine on the disclosure duties under CrR 4.7(c)(3) because that is a question of law.

Currency note

This opinion was issued in 2004, 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated the disclosure obligation as tracking the officer's role in the prosecutor's cases. While the officer played no part in any case, the committee said disclosure appeared unnecessary. Once the officer might be an arresting or investigating witness, the committee said the prosecutor must disclose the relationship to the court, parties, and opposing counsel, and it characterized the conflict as one that would usually be non-waivable where the officer is an anticipated testifying witness. The committee anchored the prosecutor's duties to RPC 3.8 (timely disclosure of information that negates guilt or mitigates) and RPC 3.4 (not concealing material of evidentiary value), and applied the conflict analysis under RPC 1.7(b).

Common questions

Q: Does a prosecutor have to disclose a romantic relationship with a police officer?

A: The committee said not while the officer is uninvolved in the prosecutor's cases, but once the officer may be an arresting or investigating witness, the prosecutor must disclose the relationship to the court, parties, and opposing counsel under RPC 1.7(b).

Q: Can the conflict be waived through client consent?

A: The committee said it depends on the facts: if the prosecutor reasonably believes the relationship will not detrimentally affect the representation, disclosure and consent are possible, but where the officer is an anticipated testifying witness, the conflict will usually be non-waivable.

Q: Did the committee decide whether the whole prosecutor's office is conflicted?

A: No. The committee said imputation to the entire office was not raised by the inquirer and would not be addressed.

Q: Did the committee rule on the disclosure duties under CrR 4.7(c)(3)?

A: No. The committee said it opines on questions of attorney conduct under the Rules of Professional Conduct, not on questions of law, so it did not address CrR 4.7(c)(3).

Background and rules framework

The opinion interprets RPC 1.7(b) (Model Rule 1.7, conflicts of interest with current clients), and frames a prosecutor's duties through RPC 3.8 (Model Rule 3.8, special responsibilities of a prosecutor) and RPC 3.4 (Model Rule 3.4, fairness to opposing party and counsel). The committee drew on Arizona State Bar Opinion No. 2001-12, which addressed a romantic relationship between a prosecutor and an assistant public defender, applying the same material-limitation analysis to assess when the relationship makes a conflict non-waivable. The analysis turns on whether the officer is an anticipated witness whose testimony the relationship could affect.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7(b) (conflicts of interest; material limitation and waiver)
• Model Rule 3.8 / Washington RPC 3.8 (prosecutor's duty of timely disclosure)
• Model Rule 3.4 / Washington RPC 3.4 (not concealing material having evidentiary value)

Court rules:

• CrR 4.7(c)(3) (Washington criminal discovery rule; the committee declined to opine as a question of law)

Other opinions cited:

• Arizona State Bar Opinion No. 2001-12: romantic relationship between a prosecutor and an assistant public defender; material-limitation analysis under ER 1.7(b)

See also

• WA Ethics Op. 2047: A Non-Waivable Co-Client Conflict
• WA Ethics Op. 1265: Prosecutor Employing Judge's Spouse
• WA Ethics Op. 1963: Lawyer-Agent Commission Split, Non-Waivable Conflict

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1317

Original opinion text

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

Advisory Opinion: 2073
Year Issued: 2004
RPC(s): RPC 1.7(b), 3.4, 3.8, CrR 4.7(c)(3)
Subject: Duty of a county prosecutor to disclose a personal relationship with a sheriff`s officer

The inquirer asks what ethical guidelines apply where a prosecutor is involved in a romantic relationship with a law enforcement officer who may be an arresting or investigating officer in cases referred for prosecution?

The committee opined that if the deputy prosecutor is not involved in any aspect of the prosecution, it appears that disclosure is not required.

If the relationship could substantially limit the representation of the client, the prosecutor must determine whether it would detrimentally affect the representation. If it would, there is a conflict that cannot be waived; if the prosecutor reasonably believes it would not, disclosure and consent by the client are possible under RPC 1.7(b).

The committee believes that in most, if not all, situations where the prosecutor is prosecuting and the officer is anticipated to be a testifying witness, the representation likely would be adversely affected by the romantic relationship, and a non-waivable conflict would exist.

The inquirer also asks what disclosure requirements or duties are required under CrR 4.7(c)(3). The committee provides opinions on questions of lawyer conduct arising under the Rules of Professional Conduct. It does not express opinions on questions of law.

Facts: A county prosecutor has a romantic relationship with a sheriff’s officer and is moving in and living with her. The sheriff’s office refers cases to the prosecutor for criminal prosecution. The sheriff’s deputy is not involved in any of those cases at this time. However, it is likely that in the near future the sheriff’s office will refer matters to the prosecutor in which the deputy has been an investigator and therefore a likely witness in criminal prosecutions.

Discussion: The touchstone of a prosecutor’s ethical duties applicable to this discussion is contained in RPC 3.8 that requires timely disclosure of all information known which tends to negate guilt or mitigate the offense. All attorneys, including prosecutors, are obliged to not conceal material having evidentiary value. RPC 3.4.

Arizona State Bar Opinion No. 2001-12 involved a prosecutor and an assistant public defender (APD), both of whom were attorneys and were romantically involved. Therein it is stated:

Under ER 1.7(b), the relevant inquiry is whether the dating relationship could materially limit the representation of the client. If so, the APD must determine whether the romantic relationship would adversely affect the representation. If it would, there is a non-waivable conflict; if it would not, disclosure and consent by the client are possible under ER 1.7(b). It is not difficult to imagine a situation where the Officer takes the stand to testify against the accused, followed by cross-examination of the APD, followed by re-direct examination in which the prosecutor uses the romantic relationship to either bolster the Officer’s testimony or weaken the cross-examination. In cases where the Officer is a testifying witness, and the APD is counsel for the accused, the potential for conflict under ER 1.7(b) will be very great. Indeed, the Committee believes that in most, if not all, situations where the APD is defending and the Officer is anticipated to be a testifying witness, the representation likely would be adversely affected by the romantic relationship, and a non-waivable conflict would exist. Because determination of this issue turns on the facts of any given case and relationship, however, the Committee is not adopting a bright-line rule on this point. Factors to consider in determining whether the representation would be adversely affected by the relationship include: 1) the nature and duration of the romantic relationship; 2) the nature of the charges at issue; and 3) the nature of the anticipated testimony of the Officer, including the materiality of the issue to which the Officer is expected to testify, and whether the anticipated testimony is disputed.

In cases involving the Officer and in which another member of the Public Defender’s Office is involved, the potential for conflict under ER 1.7(b) will be far less than when the APD is involved, but the potential is still real. Thus, in each case involving the Officer, the Public Defender’s Office must evaluate whether the romantic relationship between the Officer and the APD will materially limit the defense of the client.

Similarly, a prosecutor must reasonably assess whether her romantic relationship with a law enforcement officer will materially limit her representation of the client in prosecuting an accused.

In any case in which the sheriff may have participated in the arrest or investigation and thus be a potential witness, the prosecutor must disclose the relationship to the court, parties, and opposing counsel. RPC 1.7(b).

Whether a conflict under RPC 1.7(b) resulting from the romantic relationship should be imputed to the entire prosecutor’s office has not been raised by the inquirer and will not be addressed.

The inquirer also asked what disclosure requirements or duties are required under CrR 4.7(c)(3). The committee provides opinions on questions of attorney conduct arising under the Rules of Professional Conduct. It does not express opinions on questions of law.