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