Ethics Opinion 1278: Disclosure of prior relationship with witness.

Ethics Opinion 1278: Disclosure of prior relationship with witness.

2.13.2025

By Ethics Opinions

Opinion 1278 (02/05/2025)

Topic: Disclosure of prior relationship with witness.

Digest: Under Rule 3.8(b), a prosecutor is required to timely disclose her past romantic relationship with a law enforcement officer in any case where the officer is to be a witness whose testimony could be subject to challenge.  Rules 3.3(a)(1) and 3.4(a)(3) may also be implicated if New York’s discovery law requires disclosure of the past romantic relationship.  Whether a lawyer’s past romantic relationship with a witness implicates a personal interest that would create a “significant risk” of adversely affecting the lawyer’s judgment within the meaning of Rule 1.7(a)(2) depends on the facts and circumstances of that prior relationship and its likely impact on the objectivity and conduct of the lawyer in question.

Rules: 1.7(a)(2) & (b), 3.3(a)(1), 3.4(a)(3), and 3.8(b).

FACTS:

1. The inquirer is a prosecutor who had a romantic relationship with a member of law enforcement.  That relationship ended years ago and the law enforcement officer moved away  – but now the law enforcement officer has now returned to the jurisdiction where the prosecutor works, and he may become a witness in one of the prosecutor’s cases.  They were not in a relationship during any ongoing cases.  The inquirer wants to know if she is ethically required to disclose the former relationship.

QUESTION:

2. Must a prosecutor, who was in a now-ended relationship with a witness, disclose the former relationship?

OPINION:

3. Rule 3.8 of the New York Rules of Professional Conduct (the “Rules”) sets out “special” ethical responsibilities that apply to prosecutors and other government lawyers in criminal cases.  Relevant to the current inquiry, Rule 3.8(b) requires that:

4. Moreover, although answering questions of law is beyond the jurisdiction of this committee, it is important to note that New York’s criminal discovery statute expressly requires prosecutors to timely disclose “all evidence and information . . . that tends to: . . . impeach the credibility of a testifying prosecution witness,” C.P.L. 245.20(k)(iv), and to then certify to the court that the prosecutors have complied with their discovery obligations. C.P.L. 245.50(1).  Since a prosecution witness’s former romantic relationship with the prosecutor could be used to impeach the credibility of that witness by exposing his potential bias, a prosecutor’s failure to disclose the existence of that relationship could run afoul of the prosecutor’s statutory discovery obligations.  If non-disclosure does indeed violate the law, then that non-disclosure could, in turn, run afoul of the prosecutor’s ethical obligations under Rule 3.3(a)(1) to avoid making false statements to a tribunal and the prosecutor’s obligations under Rule 3.4(a)(3) to disclose “that which the lawyer is required by law to reveal.”
5. In addition to the disclosure obligations discussed above, the inquirer must also consider whether her handling of a case where a former romantic partner would be a witness would create a personal interest conflict.  Rule 1.7(a)(2) generally prohibits a lawyer from representing a client “if a reasonable lawyer would conclude that…there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” (Emphasis added.)  Notwithstanding the existence of such an interest, Rule 1.7(b)(1) nonetheless permits the lawyer to represent a client if:

6. Whether a lawyer’s prior romantic relationship with a witness implicates a personal interest that would create a “significant risk” of affecting the lawyer’s judgment depends on facts and circumstances of that prior relationship and its likely effect on the conduct and objectivity of the lawyer.  See N.Y. State 1255 (2023) (concluding that where defense attorney was in current romantic relationship with a county deputy sheriff who was a “supporting officer” in one of the attorney’s cases, the attorney must determine if a reasonable lawyer would conclude that there is a significant risk that the attorney’s independent professional judgment on behalf of the client will be adversely affected.)  For example, if the prosecutor holds significant hostility towards the witness (e.g., if the relationship did not end well) such that the prosecutor’s in-court interactions with the witness would be substantively affected or her desire to settle the case to avoid interaction with the witness would be increased, then it could be reasonably concluded that there is a significant risk that the lawyer’s personal interest will adversely impact her representation.  It is for the inquirer, who is aware of the totality of the circumstances, to determine whether a reasonable lawyer would conclude that there is a significant risk that the attorney’s judgment would be affected by the prior relationship.
7. If the inquirer concludes that there is such a risk that her judgment would be adversely affected by the prior relationship, she then must determine whether she reasonably believes that she can still provide competent and diligent representation, see Rule 1.7(b)(1), and whether she can otherwise comply with the requirements of Rule 1.7(b), including obtaining the informed consent of the client, confirmed in writing, per Rule 1.7(b)(4).  See N.Y. State 1255.

CONCLUSION:

8. Under Rule 3.8(b), a prosecutor is required to timely disclose her past romantic relationship with a law enforcement officer in any case where the officer is to be a witness whose testimony could be subject to challenge. Rules 3.3(a)(1) and 3.4(a)(3) may also be implicated if New York’s discovery law requires disclosure of the past romantic relationship. Whether a lawyer’s past romantic relationship with a witness implicates a personal interest that would create a “significant risk” of adversely affecting the lawyer’s judgment within the meaning of Rule 1.7(a)(2) depends on the facts and circumstances of that prior relationship and its likely impact on the objectivity and conduct of the lawyer in question.

(15-24)

[1] Notably, both the Association of the Bar of the City of New York and the American Bar Association Standing Committee on Ethics and Professional Responsibility have concluded that Rule 3.8 is not simply an ethical codification of Brady and its progeny.  See N.Y. City 2016-3; ABA 09-454 (2009) (both noting that Brady’s materiality requirement and Brady’s timing requirements appear to differ from the plain language of Rule 3.8).