Opinion 2073

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.