Attorney X’s spouse is a non-attorney child protective worker for the local Department of Human Services office. Is there an impermissible appearance of impropriety, or other disqualifying theory, when:

1. X accepts a court appointment to represent juvenile client, as guardian ad litem in CINA case where X’s spouse has investigated alleged abuse?

2. X accepts a court appointment to represent parent(s) in CINA case, with full disclosure to and waiver of conflict by said parent, where X’s spouse has investigated alleged abuse?

3. X accepts a court appointment as either guardian ad litem for child(ren) or attorney for a parent in CINA case, with full disclosure to parent(s) and all parties, where X’s spouse is not involved in the case, but workers from the spouse’s office are so involved?

4. X is retained privately by parent, to represent either parent or child(ren) in CINA proceeding, with full disclosure to parent(s) and all parties, where X’s spouse has investigated the alleged abuse?

5. X is retained privately by parent, to represent either parent or child(ren) in CINA proceeding where X’s spouse is not involved in the case, but [the case] involves workers from the spouse’s office?

6. X is retained privately or appointed by the Court to represent a parent on a criminal charge, the basis for which was investigated, at least in part, by X’s spouse?

7. X is retained privately or appointed by the Court to represent a parent on a criminal charge investigated, at least in part, by co-workers of X’s spouse, but that X’s spouse had no part in investigating?

8. Would your opinion in any of the above scenarios differ where X’s spouse conducted a preliminary investigation, made a report, and turned the case over to other social workers for follow-up?


All scenarios assume full disclosure to all parties prior to accepting appointment, and waiver of any potential conflict by client(s), except for guardian ad litem cases involving children.

Questions 1, 2, 4, and 6: In the scenarios posed by these questions, Attorney X’s spouse likely would be called as a witness, whom Attorney X would be required to cross-examine. This creates an actual conflict, making it improper for Attorney X to represent any of the parties to the proceedings. The situation is analogous to that addressed in Formal Opinion 01-03 (2001) (precluding city attorney from representing defendant in state prosecution where police officer for attorney’s city initiated charge or will be called as witness). See also Formal Opinion 89-31 (1989) (Conflict: Lawyer Wife of Police Chief).

It is further the opinion of the Board that the conflict in these scenarios cannot be waived.

Questions 3, 5, and 7: If Attorney X’s spouse did not participate in or direct the investigation, any conflict would normally be potential only. Unless actual conflict is present, Attorney X could represent a parent-client upon full disclosure and consent.

It is further the opinion of the Board that if the client is a child, the conflict (even if merely potential) cannot be waived.

Question 8: It makes no difference that the spouse’s involvement is limited to the preliminary investigation.

Finally, in any of the above situations “where … full disclosure and consent are to be relied on to resolve possible conflict questions there must be an affirmative explanation by counsel of all the facts, legal implications, possible effects and other circumstances relating to the proposed representation and express consent by all parties, preferably in writing if possible, for representation by counsel.” See Formal Opinion 89-31.