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Syllabus
It is improper for a lawyer to represent a client whose interests differ from those of a client who is represented by the lawyer's spouse if the exercise of the independent professional judgment by the lawyer on behalf of the client will be or reasonably may be affected by reason of the marital relationship between the two lawyers.
Question
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?
Facts
This question may arise in varying forms. A law firm may be asked to represent a client opposing the interest represented by another law firm that employs the husband or wife of a lawyer who is associated with the first law firm. A further example of a situation in which the question may arise is when the office of a public prosecutor employs a lawyer whose spouse is associated with a firm which represents a client who is being prosecuted by that office.
Opinion
Whether it is improper for husband-and-wife lawyers who are practicing in different offices or firms to represent differing interests depends upon the facts in each situation. 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 employing a married lawyer to represent clients who are opposed to interests represented by another law firm with which the married lawyer's spouse is associated as a lawyer. However, 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.
The realities of the marital relationship must be recognized with the possibility, at least, that the domestic and professional responsibilities of husband-and-wife lawyers may be incompatible when they represent conflicting interests. It takes but little imagination to anticipate a number of situations in which either spouse might find it difficult to exercise professional judgment solely for the benefit of the client and free of personal considerations. This is not to impute improper intentions to any lawyer, nor to ignore the fact that in many marriage situations no actual conflict of interest would exist. It simply recognizes that this situation is generally fraught with a potential for conflict of interest. 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 Ethical Considerations 4-1, 4-5, 5-1, 5-2, 5-3, and 5-7, and Disciplinary Rules 4-101 and 5-101. As a guideline, such a lawyer "should resolve all doubts against the propriety of the representation." (EC 5-15.)
Even though the representation by husband and wife of opposing parties is not necessarily 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. Certain facts, such as a fee being contingent or varying according to results obtained, may be particularly relevant in determining whether DR 5-101(A) is violated in situations where husband-and-wife lawyers represent opposing interests. It seems likely that in some instances, the interest of one spouse in the other's income resulting from a particular fee will be such that professional judgment may be affected, while in other situations it may not be. Thus, if the interest of one of the marriage partners as attorney for an opposing party creates a financial or personal interest that will or reasonably may 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. The existence of such interest is a fact determination to be made in each individual case.
In addition, there are other situations in which the representation of a client by a lawyer who is married to a lawyer who is identified with opposing interests is likely or may appear to prejudice the rights of the client, in which case the representation must be declined. For example, it would be improper for a lawyer who is married to a public prosecutor to defend a client who is being prosecuted by that public prosecutor.
However, there is no automatic disqualification of a lawyer who is associated with a law firm (or of that law firm) in the representation of a client by reason of the fact that the spouse of another lawyer in that firm either represents or practices law with a firm that represents interests which oppose those of that client because there is not necessarily a violation under these circumstances of DR 5-105(A) or 5-101(A). Moreover, if a lawyer who is married to a lawyer declines employment by a client because of that lawyer's understanding and application of an ethical consideration rather than because of the applicability of a disciplinary rule of the Code of Professional Responsibility to that lawyer, then DR 5-105(D) would not apply to disqualify the law firm with which that lawyer is associated in the practice of law from representing that client.
The advice contained in EC 5-3 and EC 5-16 is appropriate. The lawyer shall 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.
Accordingly, a law firm employing a lawyer whose spouse is a lawyer associated with another law firm need not, because of that fact, 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. And the 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. All doubts should be resolved against the propriety of the representation.
1995 Addendum
The Colorado Rules of Professional Conduct became effective on January 1, 1993, replacing the Code of Professional Responsibility. While the language of the Rules is somewhat different from the Code, the Ethics Committee considers this Opinion to continue to provide guidance to attorneys in this area. Attorneys are cautioned to review Tables A & B: Related Sections in the Colorado Rules of Professional Conduct and The Colorado Code of Professional Responsibility (found in the Colorado Ethics Handbook), to update the research contained in this Opinion and to conduct any independent research necessary.
Relevant provisions of the Colorado Rules of Professional Conduct, which should be examined together with this Opinion, are Rule 1.8(i) (regarding the specific conflict situation addressed in this Opinion); Rule 1.7(c) (regarding client waiver of a conflict of interest); Rule 1.10 (regarding imputed disqualification of a lawyer's firm from representation where the lawyer cannot ethically represent the client); Rule 1.6(a) and (c) (regarding confidentiality); Rules 1.7 (a)-(c), 1.8(b) and (f), and 1.9(a) (regarding conflicts of interest); and Rule 5.1(c) (responsibilities of a supervising lawyer or partner).
The Ethics Committee directs attorneys to Opinion 75 and the relevant provisions of the Colorado Rules of Professional Conduct contained in that opinion. This opinion is supplemented by Opinion 75 which should be reviewed in conjunction with the Rules.
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