Advisory Opinion:
2007
Year Issued:
2002
RPC(s):
RPC 1.7(b)
Subject:
conflict of interest, family relationship
The inquirer asks whether the existence of a family relationship between a lawyer and a material fact witness and an alleged co-conspirator constitutes or gives rise to a conflict of interest such that it would prohibit representation of another party in the same case.
The rule applicable to the issue raised by the inquirer is RPC 1.7(b) that states, “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interests unless the lawyer reasonably believes that the representation will not be adversely affected and the client consents in writing after consultation and a full disclosure of the material facts.”
The familial relationship between the lawyer, co-conspirator and material witness gives rise to a conflict of interest because it is likely that the lawyer’s representation of the client may be materially limited by the lawyer’s own interests or the lawyer’s responsibilities to third parties, namely his family members. The lawyer must assess whether or not it is reasonable to believe that the representation will not be adversely affected. The lawyer must immediately advise his client of the material facts including the existence and nature of the familial relationships and get the client’s consent to such representation in writing.
In this case, it is the opinion of the Committee that it is not reasonable to believe that the representation will not be adversely affected by the family relationship.
There is a potential that the lawyer will be compelled to look out for the interests of his family members. Consider the following examples: 1) The prosecutor offers the client a favorable plea bargain in exchange for testifying against or incriminating the lawyer’s co-conspirator family member; 2) the material witness, another family member of the lawyer must decide whether to comply with a subpoena requiring appearance, implicating their own penal interest; and, 3) the lawyer may feel pressure to steer away from developing avenues of investigation favorable to their client but unfavorable to their family member.
Since the Committee believes it is likely that representation would violate RPC 1.7(b), the attorney should advise the client that representation is not permitted by the Rules of Professional Conduct and withdraw.
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