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