Pa Bar - DA DiLuzio's Marriage to Police Chief Would Be Ethical Conflict

Nuria DiLuzio is running for the Democratic nomination as Northampton County's next District Attorney. When she first announced her candidacy in January before a crowded room of enthusiastic supporters, she certainly seemed like the candidate to beat. A few months later, her campaign is on life support.  I've previously reported that she only became a Democrat on November 21, just three days after incumbent John Morganelli announced he had decided against seeking re-election. This hurt her. Her campaign team dropped her last week after discovering that she decorated the front door of her home with a Trump-Pence sign. This hurt more. Now there's another problem, too. DeLuzio is married to Mark DiLuzio, Bethlehem's Police Chief. To those who've asked whether this is a conflict, DiLuzio has said No. At a candidates' night with the Easton NAACP, she even claimed the Pa. Bar Association had given her a green light in the form of a favorable ethics opinion. This, however, is completely inaccurate.

I've obtained and have attached a copy of that opinion. Contrary to what DiLuzio has represented, she has a conflict. It's one that would prevent her from supervising any prosecution arising out of Bethlehem. That's about 40% of the criminal cases tried in Northampton County.

This Opinion, dated February 21, comes from the Pennsylvania Bar Association's Legal Ethics and Professional Responsibility Committee. It represents the views of only one member. It is "advisory only and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. This opinion carries only such weight as an appropriate reviewing authority may choose to give it."

This epistle carries no weight, nor should it. But it says the opposite of what DiLuzio has claimed.

The issue:

"You are running for the position of District Attorney in County A. Your husband is the Chief of Police in City B, which is in County A. If you win the election, you ask whether you will have a conflict of interest in serving as the District Attorney because you are married to the Chief of Police."

Conclusion:

"Given that a prosecutor’s role as a “minister of justice” requires impartiality or disinterestedness, and a prosecutor is obligated to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause, the issue is whether you will be precluded from exercising independent professional judgment in instances in which your spouse or subordinates of your spouse are bringing charges and testifying against defendants in court. You would have a conflict of interest under Rule 1.7(a)(2) where there is significant risk that your representation of the Commonwealth, which entails a fiduciary duty to the public to act disinterestedly, is materially limited by your personal interest in taking actions that favor your spouse or your spouse’s subordinates. Section 3-1.7 of ABA Standards for Criminal Justice cited above reinforces this precept.

"Rule 1.7(b) provides that notwithstanding the existence of a conflict of interest, representation may proceed if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation and the client gives informed consent.  However, serious doubt exists as to whether the interests of the Commonwealth will be adequately protected if the Commonwealth gives informed consent. Moreover, it is not clear how the Commonwealth would consent to such a conflict when its own representative is the lawyer engaging in the conflict. Accordingly, whenever matters arise in the District Attorney’s Office involving the police department for which your spouse serves as Chief of Police, you should consider formally designating an Assistant District Attorney to be fully responsible for prosecutions arising from arrests by that police department consistent with a court-implemented and supervised screening process concerning the handling of such matters to avoid the conflicts enumerated above. See PBA Informal Opinion 2010-052."

Under this opinion, DiLuzio would have to designate an Assistant District Attorney who was never elected to handle and supervise all Bethlehem prosecutions  So basically there would be two district attorneys. Moreover, the unelected DA would be subject to court supervision. That presents another ethical dilemma. How could the court possibly hold itself out as an independent and neutral jurist if it is supervising the DA who prosecutes Bethlehem cases? 

This informal opinion is poorly considered. But it nevertheless says the exact opposite of what DiLuzio has told others. I find that more troubling than the opinion itself.

PaBar: DA Has Conflict if Married to Chief of Police by BernieOHare on Scribd