Ethics Opinions

Opinion No. 81-8

August 1981

Summary: The fact that two attorneys are husband and wife does not by itself create a conflict of interest between them within the meaning of Canon 5; rather the existence of the relationship is one of the many factors that should be considered in determining whether a conflict exists in a particular situation. Consequently, there is no per se bar to the representation of criminal defendants by a law firm that employs an attorney who is the spouse of an assistant district attorney even in cases in which the firm and the assistant district attorney are opposing counsel of record.

Facts: An attorney has asked whether her employment by a particular law firm would disqualify the firm from representing criminal defendants in a particular county because of the fact that her husband is an assistant district attorney in that county. The attorney has stated that she would neither defend nor assist with cases pending in a court to which her husband was assigned. She asks whether other lawyers in her firm would be permitted to defend cases against her husband and, if they may not, whether they properly could do so against other prosecutors in a court to which her husband was assigned.

Discussion: Because no specific case is involved, this inquiry presents one question only: Does SJC Rule 3:07 make it per se improper for attorneys who are husband and wife simultaneously to represent parties who have adverse interests in a particular matter. The answer in one word is no.
A conflict exists under Canon 5 wherever a lawyer's exercise of professional judgment on behalf of a client will or reasonably may be affected by his own financial, business, property, or personal interest. We do not believe that an attorney's judgment will necessarily be so affected solely because an opposing attorney is his or her spouse. Because there is no per se prohibition against the simultaneous representation of adverse parties by attorneys who are husband and wife, there likewise is no per se disqualification of a law firm that employs such an attorney. Cf. DR 5-105(D).
This is not to say that in a particular case the existence of a husband-wife relationship cannot be a significant element of a conflict or that there might not be situations in which the closeness of the relationship would make it difficult for one or both of the attorneys to observe the requirements of Canon 4 that a client's secrets and confidences be preserved. Because no facts are presented here, we defer discussion of these matters, including whether the existence of the relationship must be disclosed to the clients, until they are presented to us in the context of a specific case. In particular, we do not now consider if a husband and wife personally may represent opposing parties in a criminal matter.

Permission to publish granted by the Board of Delegates on June 24, 1981.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.