Can a lawyer market a spouse's business to the lawyer's own clients, for example by posting ads in the office or steering clients to buy products?

Plain-English summary

A lawyer asked about the extent to which the lawyer's clients could become customers of the lawyer's wife's business, including posting advertisements for the business in the office and giving clients access to buy products or discuss the marketing side of the business. The committee was of the opinion that there were too many possible scenarios to respond to each with specificity, but set out the general rules.

As a general rule, the committee said the lawyer would be required to comply with RPC 1.8(a), 1.7(b), and 1.9. A relationship between current clients and the wife's business is subject to RPC 1.8(a) because the lawyer has a pecuniary interest in that business, so the rule's conditions, including full disclosure of the transaction's terms, a reasonable opportunity to seek independent counsel, and client consent, apply. The same relationship is subject to RPC 1.7(b) because the representation may be materially limited by the lawyer's responsibilities to a third person (the wife) or the lawyer's own interests, absent full disclosure and consent.

For clients whose representation has concluded, the committee said RPC 1.9 (former clients) governs. And in all circumstances, the identity of a client is a secret or confidence that the lawyer could not disclose to the wife without the client's consent under RPC 1.6.

Currency note

This opinion was issued in 1994, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional 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 Treat this page as historical context, not current guidance.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 lawyer steer current clients to a spouse's business?

A: The committee said such a relationship is subject to RPC 1.8(a), because the lawyer has a pecuniary interest in the spouse's business, and to RPC 1.7(b), so the rules' disclosure and consent conditions apply.

Q: What rule applies to former clients?

A: The committee said that for clients whose representation has concluded, RPC 1.9 (former clients) governs the relationship with the spouse's business.

Q: Can the lawyer share client names with the spouse to market the business?

A: No. The committee said the identity of a client is a secret or confidence that could not be disclosed to the wife without the client's consent under RPC 1.6.

Background and rules framework

The opinion applied RPC 1.8(a) (ABA Model Rule 1.8) to the lawyer's pecuniary interest in the spouse's business, RPC 1.7(b) (ABA Model Rule 1.7) to the risk that the representation would be materially limited by the lawyer's responsibilities to the spouse or the lawyer's own interests, RPC 1.9 (ABA Model Rule 1.9) to former clients, and RPC 1.6 (ABA Model Rule 1.6) to the confidentiality of client identity. The committee gave the framework rather than scenario-by-scenario answers.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6
• ABA Model Rule 1.7 (conflict of interest; current clients); Washington RPC 1.7(b)
• ABA Model Rule 1.8 (business transactions with a client); Washington RPC 1.8(a)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9

See also

• WA Ethics Op. 1557: Royalty or Profit-Share Fees From Inventor Clients
• WA Ethics Op. 1017: Lawyer Who Is Also a Real Estate Broker

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=654

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1573
Year Issued: 1994
RPC(s): RPC 1.6; 1.7(b); 1.8(a); 1.9
Subject: Conflict of interest; marketing spouse's business to lawyer's clients

The Committee reviewed your inquiry concerning the extent to which your clients may become customers of your wife's business. Your letter raised a number of questions, such as whether you can post advertisements of your wife's business in your office; and whether you can provide access to your clients who are interested in your wife's business, either to purchase products or to "discuss the marketing aspect of the business with them". The Committee was of the opinion that there were too many different possible scenarios conceivable in your letter to respond with specificity in each instance. However, the Committee was of the opinion that as a general rule, you would be required to comply with RPC 1.8(a), 1.7(b) and 1.9. The Committee was of the opinion that a relationship between your current clientele and your wife's business would be subject to RPC 1.8(a), because you have a pecuniary interest in your wife's business. RPC 1.8(a) provides that the attorney "shall not enter into a business transaction with a client or knowingly acquire ownership . . . or other pecuniary interest adverse to a client" unless certain conditions are met, including full disclosure of the terms of the transaction, a reasonable opportunity for the client to seek the advice of independent counsel and consent of the client. Likewise, a relationship between your current clientele and your wife's business would be subject to RPC 1.7(b), which essentially provides that a lawyer shall not represent a client if representation may be materially limited by the lawyer's responsibilities to a third person (his wife) or his own interests without full disclosure and consent of the client. Each of the foregoing rules apply to a present lawyer/client relationship. For clients in which your representation has concluded, you would be required to comply with RPC 1.9, which applies to former clients. Needless to say, under any circumstances the identity of the client is a secret or confidence which could not be disclosed by you to your wife without the client's consent, RPC 1.6. In summary, the Committee was of the opinion that with respect to your current clientele any relationship between your clients and your wife's business would be subject to the requirements of RPC 1.8(a) and 1.7(b) and that any relationship between your former clients and your wife's business would be subject to RPC 1.9.