October 29, 1997
You are an attorney whose secretary is married to a law enforcement officer. You are defending a client accused of serious offenses. You have been advised that the prosecutor intends to call your secretarys husband as a witness in the criminal trial to testify to alleged admissions against interests by your client.
You ask whether you may continue to represent the accused defendant and whether your future representation of criminal defendants is jeopardized if your secretarys husband is involved in the investigation.
SDCL 16-18 Appx. Rule 1.7(b), in pertinent part, states:
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyers responsibilities to ... a third person, or by the lawyers own interests, unless
1) the lawyer reasonably believes the representation will not be adversely affected; and
2) the client consents after consultation ....
It is the opinion of the Committee that you are not necessarily precluded from either your present representation or future representations of criminal defendants, solely because your secretarys husband is involved in the prosecution. However, on a case-by-case basis, you must reasonably believe the representation would not be adversely affected by the fact of the secretarys husbands involvement. The Comments suggest that such reasonable belief exists only if the fact of the husbands involvement does not materially interfere with the lawyers independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Rule 1.7, Comment; Loyalty to a Client.
Assuming that reasonable belief exists, Rule 1.7(b)(2) still requires that the client consent after consultation. As to this client, and any future cases involving the secretarys husband, you may proceed only after an evaluation and determination of reasonable belief and with the informed consent of the client or prospective client.
Assuming you proceed with this or a future similar representation, you should review and comply with Rule 5.3. Responsibilities Regarding Non-lawyer Assistants. Specifically, you must make reasonable efforts to ensure that [your secretarys] conduct is compatible with the professional obligations of the lawyer.... Rule 5.3(b).
Lonnie R. Braun
Chair, Ethics Committee
State Bar of South Dakota