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Ethics Opinion

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RI-206

April 11, 1994

SYLLABUS

    A lawyer whose spouse has provided marital counseling to a married couple is not per se prohibited from accepting a referral of one of the parties from the marital counseling service, provided that:

    1. the lawyer does not give anything of value for the referral;

    2. confidences and secrets obtained by the lawyer are not shared with the spouse without client consent;

    3. the marital relationship is disclosed to the client;

    4. the marital counselor/spouse is not called as a witness in the matter.

    A lawyer may office share with a marital counseling business operated by the lawyer's spouse as long as the businesses are segregated, client confidences are protected, and public communications about each business entity are clear and do not create unjustified expectations about the results which can be achieved.

    References: MRPC 1.4, 1.6, 1.7(b), 5.4, 7.2(c); RI-66, RI-118, RI-135; MCL 339.1509.

TEXT

A lawyer's spouse operates a marital counseling service. Couples with domestic problems meet with the marital counselor together and separately in an attempt to work out problems before deciding whether to seek legal separation or divorce. The lawyer inquires if the marital counselor may refer one or both of the parties to the lawyer for legal guidance; whether there are any special limitations on the lawyer undertaking the representation; whether it matters if the marital counselor will be a witness in any resulting legal action; and whether the law firm and the marital counseling business may share office space.

The problem presented here is more of a question of the marital counselor's ethical behavior than the lawyer's. It appears a referral by a marital counselor of a patient to the counselor's spouse for a divorce would at best be suspect due to the presumption the lawyer would gain more monetarily from the patient's business than the counselor. Further, since the counselor and lawyer are most likely one person in the financial sense, the counselor has an incentive to recommend divorce even if it is not in the patient's best interest. Moreover, if the counselor makes a recommendation to one or the other of a couple, both of whom has been counseled, it seems there would be a disservice to the other by virtue of the recommendation.

There are no ethical restrictions on who may refer a client to a lawyer. The fact that the marital counselor is a close family member of the lawyer or that the marital counseling service is a nonlaw business does not prohibit a referral.

Various ethics rules may be applicable in determining whether a lawyer may accept a particular referral. MRPC 1.4 requires a lawyer to explain matters to a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; such information would include that the lawyer is married to the counselor who recommended the lawyer. MRPC 7.2(c) prohibits a lawyer from giving "anything of value" for a referral; the lawyer could not have an agreement with the marital counseling service to provide referrals. Rules governing protection of confidences and secrets must also be considered; unless the client consents, the lawyer may not share confidences and secrets with the marital counselor spouse, even if the marital counselor has referred the matter to the lawyer. See RI-62. Conversely, information obtained by the marital counselor is privileged unless a waiver is obtained from each individual in the therapy. MCL 339.1509.

Rules governing conflicts of interest control whether the lawyer may accept a particular client. Since the marital counseling business is operated by the lawyer's spouse, there may be, in a particular case, some concern about whether the lawyer can exercise independent professional judgment on behalf of the client, knowing that the spouse/marital counselor has already been involved in the matter. MRPC 5.4. The lawyer must take care not to allow the representation of the lawyer's law clients to be materially limited by the interests of the lawyer's spouse. MRPC 1.7(b).

MRPC 1.7 states:

    "(a) A lawyer shall not representant a client if the representation of that client will be directly adverse to another client, unless:

      "(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

      "(2) each client consents after consultation.

    "(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

      "(1) the lawyer reasonably believes the representation will not be adversely affected; and

      "(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the complications of the common representation and the advantages and risks involved."

As discussed in RI-66 and RI-172, MRPC 1.7 requires a lawyer to first determine whether a disinterested lawyer would reasonably believe the representation of a prospective client will not adversely affect the relationship with the current client.

A lawyer may office share with the marital counseling business as long as the businesses are segregated, client confidences are protected, and public communications about each business entity are clear and do not create unjustified expectations about the results which can be achieved. See RI-135 and RI-118.

Previous ethics opinions have discussed sharing office space with nonlawyers or maintaining non-legal businesses of a lawyer in a conventional office setting. They require physical separation of the offices so that the businesses remain distinct. While use of a common conference room is allowed, it cannot be used by the lawyer as a law library or in any way suggest a connection between the legal and non-legal businesses. Separate telephone lines must be maintained. RI-118.

 
     

 

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