82-F-31 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 82-F-31

 

Where both husband and wife are lawyers but they are not practicing in association with one another, may they or their firms represent differing interests?

Formal Ethics Opinion 340 of the American Bar Association addressing this question is hereby adopted as the opinion of this Committee, to-wit:

This question, in varying forms, has been presented to this Committee with some frequency recently. Some firms apparently have been reluctant to employ one spouselawyer where that person's husband or wife is, or may soon be, practicing with another firm in the same city or area. On the other hand, some law schools have expressed disapproval of the practice by some firms in their hiring practices of attaching grave importance to the fact that the law student under consideration is married to a lawyer or a law student. Some law firms are concerned whether a law firm is disqualified, by reason of its employment of one spouse, to represent a client opposing an interest represented by another law firm that employs the husband or wife of the inquiring firm's associate. Some of the circumstances bearing on this question include whether the fee of either firm is contingent, whether the disputed matter is one of negotiation or litigation, and whether the married lawyer in question will or will not actually be working on the particular matter. Another variation of the problem is the situation in which a governmental agency, such as a district attorney or an attorney general, is the employer of either the husband or the wife, and the spouse is associated with a law firm in the same community.

The problem undoubtedly will arise with increasing frequency and in different settings, for it is a fact of modern society that women are entering the profession in increasing numbers and that increasing numbers of these women are married to a lawyer. Clearly, today it is not uncommon for husband and wife lawyers to be practicing in different offices in the same city, and the current enrollment of women in law schools indicates that women lawyers will constitute a greater percentage of the bar in the future than now.

It is not necessarily improper for husband and wife lawyers who are practicing in different offices or firms to represent differing interests. No disciplinary rule expressly requires a lawyer to decline employment if a husband, wife, son, daughter, brother, father, or other close relative represents the opposing party in negotiation or litigation. Likewise, it is not necessarily improper for a law firm having a married partner or associate to represent clients whose interests are opposed to those of other clients represented by another law firm with which the married lawyer's spouse is associated as a lawyer.

A lawyer whose husband or wife is also a lawyer must, like every other lawyer, obey all disciplinary rules, for the disciplinary rules apply to all lawyers without distinction as to marital status. We cannot assume that a lawyer who is married to another lawyer necessarily will violate any particular disciplinary rule, such as those that protect a client's confidences, that proscribe neglect of a client's interest, and that forbid representation of differing interests. Yet it also must be recognized that the relationship of husband and wife is so close that the possibility of an inadvertent breach of a confidence or the unavoidable receipt of information concerning the client by the spouse other than the one who represents the client (for example, information contained in a telephoned message left for the lawyer at home) is substantial. Because of the closeness of the husband and wife relationship, a lawyer who is married to a lawyer must be particularly careful to observe the suggestions and requirements of EC 4-1, EC 4-5, EC 5-1, EC 5-2, EC 5-3, EC 5-7, DR 4-101 and DR 5-101.

Even though the representation by husband and wife of opposing parties is not a violation of any disciplinary rule, the possibility of a violation of DR 5-101, in particular, is real and must be carefully considered in each instance. If the interest of one of the marriage partners as attorney for an opposing party creates a financial or personal interest that reasonably might affect the ability of a lawyer to represent fully his or her client with undivided loyalty and free exercise of professional judgment, the employment must be declined. We cannot assume, however, that certain facts, such as a fee being contingent or varying according to results obtained, necessarily will involve a violation of DR 5-101(A). In some instances, the interest of one spouse in the other's income resulting from a particular fee may be such that professional judgment may be affected, while in other situations, it may not be; the existence of such interest is a fact determination to be made in each individual case. Wherever one spouse is disqualified under DR 5-101(A), the entire firm is disqualified under DR 5-101(D).

In any event, the advice contained in EC 5-3 and EC 5-16 is apropos; the lawyer should advise the client of all circumstances that might cause one to question the undivided loyalty of the law firm and let the client make the decision as to its employment. If the client prefers not to employ a law firm containing a lawyer whose spouse is associated with a firm representing an opposing party, that decision should be respected.

The views expressed in this opinion are consistent with the views expressed by other committees in regard to the close relationships of opposing lawyers. For example, it has been held that a father and son may represent opposite sides in litigation: See Opinion 19 (January 23, 1963), Professional Ethics Committee of the Kansas Bar Association; Opinion 48, Missouri Advisory Opinions. In its Opinion No. 170 (1970), the New Jersey Advisory Committee on Professional Ethics held it is not improper for a lawyer to represent an indigent when the lawyer's brother is employed by the prosecutor's office.

Accordingly, we conclude that a law firm employing a lawyer whose spouse is a lawyer associated with another local law firm need not fear consistent or mandatory disqualification when the two firms represent opposing interests; yet it is both proper and necessary for the firm always to be sensitive to both the possibility of disqualification and the wishes of its clients. Marriage partners who are lawyers must guard carefully at all times against inadvertent violations of their professional responsibilities arising by reason of the marital relationship.

This 18th day of June, 1982.

ETHICS COMMITTEE:

William R. Willis, Chairman
F. Evans Harvill
John R. Rucker, Senator

APPROVED AND ADOPTED BY THE BOARD