LEO: Attorney Spouse of Assistant LE Op. 673
Attorney Spouse of Assistant Commonwealth's Attorney.
March 15, 1985
Where an attorney ("assistant") is both the spouse and law partner of a
private practitioner, and is the sole assistant to a commonwealth's
I. Criminal and Divorce Cases
The spouse of "assistant" may represent a defendant in criminal
proceedings brought by the commonwealth's attorney. The spouse of "
assistant" may represent either the plaintiff or defendant in a divorce
proceeding where criminal charges brought by the commonwealth's attorney
against a spouse constitute the grounds for divorce. The "assistant,"
however, may not represent the plaintiff spouse in a divorce proceeding
where the commonwealth's attorney's charges against the defendant spouse
constitute the grounds for the divorce proceeding. Similarly "assistant's"
spouse may not represent the plaintiff spouse where the defendant spouse
is prosecuted by "assistant."
It is not improper for either the "assistant" or her spouse to represent
a party seeking support or child custody where no government agency is a
II. Criminal and Traffic
It is not improper for the spouse of "assistant" to handle a personal
injury or property damage action arising out of a traffic or other offense (
minor or not) so long as it is not prosecuted by the "assistant." If such
representation begins before a warrant is issued, the assistant herself
should not prosecute the case, felony or not.
III. Criminal and Collection
"Assistant's" spouse may pursue civil collection against a party at the
same time that the commonwealth's attorney's office is prosecuting the
same party for show cause of nonpayment of fines, costs, or restitution so
long as the "assistant" is not prosecuting the action. ( EC:9-2)
Conversely, it is improper for the commonwealth's attorney's office to
prosecute a party for nonpayment where the "assistant" is pursuing a civil
claim of debt against the same party. ( EC:9-2) [See EC:9-2, DR:8-101(
A)(2), DR:5-101(A), DR:4-101 and LE Op. 358.]
Committee Opinion March 15, 1985