Can married lawyers appear on opposite sides of a matter, and what about their separate firms opposing each other?

Plain-English summary

Opinion E-80-6 considered married lawyers A and B, where A was an assistant corporation counsel for a county and B worked at a private firm in the same county. It asked which of four situations would be improper: (1) one lawyer-spouse appearing directly against the other; (2) the county lawyer-spouse appearing against the private firm where the other spouse works; (3) the private-firm spouse appearing against the county office of the other spouse; and (4) another attorney from the private firm appearing against another attorney from the county office.

The committee concluded that only the first situation is a per se violation. It found no express prohibition in the Code against a spouse appearing opposite a spouse, but said the first situation falls within the penumbras of several Ethical Considerations and is implicitly prohibited in all circumstances, because direct spouse-versus-spouse advocacy would almost always jeopardize the duties of independent judgment, undivided loyalty, confidentiality, and avoiding the appearance of impropriety (SCR 20.21(1), 20.23(1), 20.23(2)(a), 20.34(1)(a), 20.48(6)). Quoting ABA Formal Opinion 340 (1975), the committee said it is not necessarily improper for married lawyers in different offices or firms to represent differing interests, but warned that the closeness of the marital relationship makes inadvertent breaches of confidence a substantial risk. It noted that where one spouse's personal or financial interest reasonably might affect the lawyer's ability to represent a client with undivided loyalty, the employment must be declined and the whole firm is disqualified (SCR 20.24(1), 20.28(4)). The committee added that a state, or any instrumentality of the state, cannot give the consent to representation permitted by SCR 20.28(3).

Currency note

This opinion was issued in 1980, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provisions cited in the opinion. Conflicts arising from a lawyer's relationship with a related lawyer on the opposing side are now analyzed under the personal-interest branch of SCR 20:1.7 / Model Rule 1.7, and imputation under SCR 20:1.10 / Model Rule 1.10, which generally does not automatically impute a personal relationship to the rest of a firm. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer appear directly against his or her own lawyer-spouse?

A: No. The committee concluded that one lawyer-spouse representing interests directly against the other is a per se violation, implicitly prohibited in all circumstances.

Q: Can the spouses' separate firms or offices oppose each other?

A: The committee said this is not prohibited per se, but it requires case-by-case attention under the conflict rules and disqualification where a spouse's interest reasonably might affect loyalty or judgment.

Q: Can a government office consent to such a representation?

A: No. The committee said a state, and any instrumentality of the state, cannot give the consent to representation that SCR 20.28(3) otherwise permits.

Background and rules framework

The opinion applied the former Wisconsin rules on personal-interest conflicts and declining employment (SCR 20.23(2)(a), 20.24(1)) and on firm-wide disqualification (SCR 20.28(4)), guided by ABA Formal Opinion 340. The current counterparts are the personal-interest conflict branch of SCR 20:1.7 / Model Rule 1.7 and the imputation rule SCR 20:1.10 / Model Rule 1.10.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.23(2)(a) (declining employment affected by personal interests) (former Code)
• Wis. SCR 20.24(1), 20.28(4) (personal-interest conflict; firm-wide disqualification) (former Code)
• Model Rules 1.7, 1.10 (conflicts; imputation)

Other opinions cited:

• ABA Formal Opinion 340 (1975): married lawyers representing differing interests

See also

• WI Ethics Op. E-80-20: Representation For and Against a County
• WI Ethics Op. E-80-17: Conflict of Interest in Co-Defendant Situations
• WI Ethics Op. E-82-9: Municipal Attorney Representing Police Officers

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-80-6.pdf