Ohio Board Advisory Opinion Op 16-012

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in
response to a prospective or hypothetical question regarding the application of ethics rules
applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely
responsible for the content of this advisory opinion, and the advice contained in this opinion
does not reflect and should not be construed as reflecting the opinion of the Supreme Court
of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio
Board of Professional Conduct.
OHIO BOARD OF PROFESSIONAL CONDUCT
OPINION 2016-12
Issued December 9, 2016
Conflict of Interest when Spouse of Criminal Defendant’s Lawyer is an Officer
Employed by Arresting or Investigating Agency
Syllabus of Opinion:
A lawyer is not prohibited from accepting representation of a defendant in a
criminal matter where the lawyer’s spouse is an officer or detective employed with the
arresting or investigating agency and is not involved in the case. If a lawyer determines
that a material limitation conflict exists and the lawyer seeks to accept or continue the
representation, then the lawyer must ensure that (1) he or she is able to provide
competent and diligent representation to the client; (2) the client gives informed consent,
confirmed in writing; and 3) the representation is not precluded by law. Prof.Cond.R.
1.7(a)(2), (b), (c).
If a lawyer determines that the representation cannot be accepted or continued
due to the material limitation conflict, then that conflict generally is not imputed to other
lawyers in the firm or the public office under Prof.Cond.R. 1.10(a).

OHIO BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov/boards/boc
PAUL M. DE MARCO
CHAIR
RICHARD A. DOVE
DIRECTOR
WILLIAM J. NOVAK
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL
OPINION 2016-12
Issued December 9, 2016
Conflict of Interest when Spouse of Criminal Defendant’s Lawyer is an Officer
Employed by Arresting or Investigating Agency
SYLLABUS: A lawyer is not prohibited from accepting representation of a defendant in
a criminal matter where the lawyer’s spouse is an officer or detective employed with the
arresting or investigating agency and is not involved in the case. If a lawyer determines
that a material limitation conflict exists and the lawyer seeks to accept or continue the
representation, then the lawyer must ensure that (1) he or she is able to provide
competent and diligent representation to the client; (2) the client gives informed consent,
confirmed in writing; and 3) the representation is not precluded by law. Prof.Cond.R.
1.7(a)(2), (b), (c).
If a lawyer determines that the representation cannot be accepted or continued
due to the material limitation conflict, then that conflict generally is not imputed to other
lawyers in the firm or the public office under Prof.Cond.R. 1.10(a).
QUESTION: A lawyer seeks guidance regarding whether she may accept or continue to
represent criminal defense clients when the spouse of the lawyer is an officer or detective,
employed by the agency that arrested or investigated the client, but the spouse is not
involved in the case.
APPLICABLE RULES: Prof.Cond.R. 1.7, 1.10.
OPINION: A lawyer must determine whether a conflict of interest exists under the Rules
of Professional Conduct in order to accept or to continue to represent a defendant in a

Op. 2016 -12 2
criminal matter when the lawyer’s spouse is an officer or detective employed with the
arresting or investigating agency, but is not involved in the case.
Under Prof.Cond.R. 1.7(a), a conflict of interest is created if the lawyer’s
representation of the current client “will be directly adverse to another current client.”
Prof.Cond.R. 1.7(a)(1). A conflict of interest also is created even when clients are not
directly adverse, but where “there is a substantial risk that the lawyer’s ability to
consider, recommend, or carry out an appropriate course of action for that client will be
materially limited by the lawyer’s responsibilities for another client, a former client, or a
third person or by the lawyer’s own personal interests.” Prof.Cond.R. 1.7(a)(2).
The mere possibility of subsequent harm from a potential material limitation
conflict, by itself, does not require disclosure and consent. Prof.Cond.R. 1.7, cmt. [14].
The critical questions a lawyer must evaluate are: (1) whether a difference in interests
between the client and the lawyer is likely to arise; and (2) if so, whether the difference in
interests will materially interfere with the lawyer’s independent professional judgment
in considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client. Prof.Cond.R. 1.7, cmt. [14]. The rationale for this rule is
that a lawyer’s own interests should not adversely affect the representation of the client.
Prof.Cond.R. 1.7, cmt. [20].
ANALYSIS:
Material Limitation Conflict:
Analyzing these rules in relation to the question presented, the lawyer must
determine whether a material limitation conflict exists under Prof.Cond.R. 1.7(a)(2),
which would preclude the lawyer from accepting or continuing representation of a
defendant. Among the relevant considerations are whether the lawyer will be able to
conduct a direct or cross examination of his or her spouse’s coworkers or superiors or
whether the lawyer’s duty of loyalty to the client is compromised by his or her spousal
relationship.

Op. 2016 -12 3
If the lawyer, in the exercise of his or her professional judgment, determines there
is no material limitation conflict, the Rules of Professional Conduct permit a
representation to continue or be accepted. If the lawyer believes a material limitation
conflict exists, the Rules of Professional conduct permit the lawyer to accept or continue
representation if (1) the lawyer is able to provide competent and diligent representation
to the client, (2) the client gives informed consent, confirmed in writing, and (3) the
representation is not otherwise prohibited by law and does not involve the assertion of a
claim by one client against another in the same proceeding. Prof. Cond. R. 1.7(b)(1)-(3).
Although the Rules of Professional Conduct permit a lawyer to accept or continue
representation when faced with a material limitation conflict, the Board recommends that
this type of representation be avoided when possible due to the complicated
circumstances that may prevent the competent and diligent representation of the client
when a lawyer is faced with the type of conflicting professional and personal obligations
presented in this opinion.
Imputation of Conflict:
If a lawyer determines that a representation cannot be undertaken or continued due
to a material limitation conflict, then that conflict generally is not imputed to the other
lawyers in the lawyer’s firm or public office. Prof.Cond.R. 1.10(a) states that when a
conflict of interest is based upon a personal interest and does not present a significant
risk of materially limiting the representation of the client by the remaining lawyers in the
firm, then there is no imputation of that conflict by other lawyers in the firm.
CONCLUSION: When a lawyer is criminal defense counsel and the lawyer’s spouse is
an officer or detective employed with the arresting or investigating agency in the case, a
material limitation conflict may exist between the lawyer’s representation of the client
and the lawyer’s spouse, even if the spouse is not involved in the matter. If a material
limitation conflict exists and the lawyer seeks to accept or continue the representation,
then under Prof.Cond.R. 1.7 the lawyer may represent the client only if (1) competent
and diligent representation is provided to the client; (2) the client gives informed consent,
confirmed in writing; and (3) the representation is not prohibited by law or does not
involve the assertion of a claim by one client against the other in the same proceeding.

Op. 2016 -12 4
Prof.Cond.R. 1.7(b)(1-3), 1.7(c). If a lawyer determines a material limitation conflict exists
and cannot accept or continue the representation, then such a conflict ordinarily is not
imputed to the lawyer’s law firm.