June 22, 1982
Superseded to the extent inconsistent with R-3
While it is ethically improper for spouses to represent adverse parties, a lawyer may represent a client in a matter in which the adversary party is represented by a partner or associate of a spouse's firm, provided a full written disclosure of the spouse's employment with firm is made and written consent is obtained from the client, and from the client of the spouse's firm, prior to undertaking representation of the client.
References: MCPR DR 4-101, DR 5-101(A) and (D); CI-65, CI-213, CI-340, CI-607; ABA Op C-340.
A lawyer works for a firm specializing in taxation and represents several clients in cases against the United States and the Internal Revenue Service, both in the United States Tax Court and in federal district court. The lawyer's spouse is a sole practitioner and has been retained to represent the government in a lawsuit filed by certain plaintiffs in district court for unauthorized disclosure of tax return information, violation of Constitutional rights, and tax conspiracy, among other things. The lawyer asks whether there exists any conflict of interest or other potential problems resulting from a husband and wife who are both lawyers, not working for the same firm, who represent adverse or potentially adverse clients.
Previous opinions indicate that spouses may not represent clients on the opposite side of the same case, but a lawyer may represent a client in a matter in which the adversary party is represented by another member of the spouse's firm provided that written disclosure and consent is secured from the clients.
In CI-340 a wife was engaged in private practice as a sole practitioner, while the husband was a partner in a large firm. They filed joint tax returns and had interests in each other's earnings, at least to the extent of survivorship and other marital disposition. The husband represented a number of insurance carriers with which the wife would anticipate litigation, inasmuch as she accepted personal injury matters. In that context, the question was whether the wife and husband may oppose each other directly; and whether the wife and any partners or associates of the husband may oppose each other, among others.
CI-340 drew a balance between two conflicting arguments: 1) the apparent skeptical scrutiny of individuals in the profession of law who are suspect by the public, even for merely socializing, much less living together and the heightened effect of this skepticism to a losing party in a courtroom; and 2) the absolute right of the client to select a lawyer of his or her own choosing, so long as he or she is fully aware of the facts.
CI-65 said that it would be improper for a husband and wife who are both lawyers to represent adverse parties or interests.
The same conclusion was affirmed in CI-213 and upheld by the Committee in CI-340. CI-213, dealing with this issue in the context of criminal matters, concluded that lawyers from an office practicing in opposition to a spouse of an individual from the same office was proper. That Opinion said:
"Canon 5 addresses itself to conflicting interests affecting a lawyer's independent judgment on behalf of his client; however, Canon 5 does not, nor have we been able to find any published ethics opinion which does, expressly prohibit attorneys who are husband and wife from representing clients with opposing interests. Dr 5-101(A) provides that without full disclosure and his client's consent ". . . a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be effected by his own . . . personal interests." Canon 7 states that "a lawyer should represent a client zealously within the bounds of the law.
"While it may be concluded that neither canon 5 nor Canon 7 applies, Canon 9 --"A Lawyer Should Avoid Even the Appearance of Professional Impropriety" --cannot be ignored. The very relationships described create the appearance that professional judgment and the zeal with which an accused must be represented may be effected by personal interests."
In light of the above, the committee in CI-340 reached the same conclusion as that of CI-213, and said:
"An attorney may represent a client in a matter in which the adversary party is represented by a partner or associate of a spouse's firm, provided a full written disclosure of the spouse's employment with the firm is made and written consent is obtained from the client prior to undertaking representation of the client. Similar disclosure by the spouse's firm to its client must be given and written consent secured. Provided such disclosures are made and consents obtained, such representation would not be unethical."
This same reasoning and conclusion was upheld in CI-607, which dealt with the issue of whether lawyers who were roommates, could represent adversaries in a criminal matter. There it was said that a court appointed defense attorney should not try a case against a member of a prosecutor staff who was a roommate and a close personal friend of ten years, for in that situation, not even full disclosure and consent of the defendant could resolve the potential conflict. That Opinion addressed the importance of the effect such a situation had on the public at large, and said:
"Obviously, close personal friendships between attorneys do not always create the appearance of impropriety and constant social contacts do not form the basis for ethical review. However, when domiciliary or business arrangements necessarily throw opposing counsel in constant personal contact with each, the public, and more importantly a losing party become legitimately suspicious. For this reason, the committee has repeatedly held that partners, associates, or even lawyers who share office space may not represent opposing parties in the same suit."
It was felt that the analogy between CI-340 and the issue of opposing lawyers who were roommates and friends, was appropriate. The opinion said further:
"By removing the close personal contact (i.e., the living arrangement) between the opposing counsel, the chance of impropriety is greatly lessened and may, in fact, become non-existent. Accordingly, if the prosecutor/roommate may continue to represent the defendant provided the appropriate disclosures are made and consent of the parties is secured."
Finally, the question of the propriety of husband and wife lawyers, not practicing in association with one another, yet working in the dame locale was addressed by in ABA Op C-340. That opinion said that such lawyers are not necessarily prohibited from representing differing interests or from being associated with firms representing differing interests. However, in any situation where a client or potential client might question the loyalty of the lawyer representing him, the situation should be fully explained to the client, and the question of acceptance of continuance of representation left to the client for decision. That opinion said:
"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 of 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 interests, and that forbid representation of differing interests. Yet it 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 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 might reasonably effect the ability of a lawyer to represent 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 interests of one spouse in the other's income resulting from a particular fee may be such that professional judgment may be effected, while in other situations it may not be; the existence of such interests 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), which provides that if a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule no partner or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."
Ultimately, the appropriate rule is that husband and wife lawyers should not represent adverse parties in Michigan. In other instances, 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 the firm representing an opposing party, that decision should be respected.