Can a law firm appear before a family court commissioner when one firm member is married to an associate of that commissioner's private law practice?

Plain-English summary

Opinion E-84-20 addressed a family court commissioner who maintained a private law practice; an associate of the commissioner planned to marry a member of Law Firm X in the same county. The question was whether members of Law Firm X may appear before the commissioner once the marriage occurs.

Drawing on its Formal Opinion E-80-6, the committee restated that the only per se conflict of interest involving lawyer spouses employed at different entities is the situation where one lawyer-spouse appears against the other lawyer-spouse; it saw no impropriety in other members of each firm representing adverse interests. Applying that, the committee concluded there would be no ethical impropriety in any member of Law Firm X, including the spouse of the commissioner's associate, appearing before the family court commissioner in his or her official capacity (comparing Memorandum Opinion 9/77C on representing a criminal defendant when a partner's spouse is prosecutor). The committee noted, however, that the family court commissioner has a duty to fully, adequately, and timely disclose the relationship when members of Law Firm X represent clients appearing before the commissioner (citing SCR 60.03 and Wis. Stat. sec. 757.23).

Currency note

This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Conflicts of this kind are now analyzed under SCR 20:1.7 / Model Rule 1.7 and the imputation rule SCR 20:1.10 / Model Rule 1.10, while the commissioner's disclosure duty arises under the Code of Judicial Conduct. 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 Treat this page as historical context, not current guidance.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 firm appear before a family court commissioner whose associate married into the firm?

A: The committee concluded yes, including the spouse of the commissioner's associate, because the only per se conflict among lawyer spouses is one spouse appearing against the other.

Q: Does anyone have to disclose the relationship?

A: Yes. The committee stated the family court commissioner has a duty to fully, adequately, and timely disclose the relationship when firm members appear before the commissioner.

Background and rules framework

The opinion interpreted the former Code's treatment of lawyer-spouse conflicts (drawing on Formal Opinion E-80-6) together with the family court commissioner's disclosure duty under SCR 60.03. Lawyer-spouse and relationship conflicts are now analyzed under SCR 20:1.7 / Model Rule 1.7 and SCR 20:1.10 / Model Rule 1.10.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest); Model Rule 1.10 (imputation)
• Wis. SCR 60.03 (judicial disclosure duty)

Statutes:

• Wis. Stat. sec. 757.23 (1981-82)

Other opinions cited:

• Wisconsin Formal Op. E-80-6
• Wisconsin Memorandum Opinion 9/77C

See also

• WI Ethics Op. E-86-5: Family Law Practice by the Spouse of a Family Court Commissioner
• WI Ethics Op. E-85-2: Criminal Defense When a Spouse Is County Sheriff
• WI Ethics Op. E-89-3: Lawyer Spouses and Imputed Disqualification

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-20.pdf