Can a lawyer represent a buyer or seller referred by the lawyer's spouse, who is the real estate broker in the same transaction?

Plain-English summary

A lawyer's spouse was a real estate broker. When handling a residential transaction, she was asked to recommend an attorney for the buyer or seller. Under local Real Estate Board guidelines, the broker had to supply three attorney names without indicating a preference, and she included her husband-attorney among the three. The committee was asked whether the spouse-attorney could represent the buyer or seller consistent with the rules.

The committee concluded that, while a blood or spousal relationship that may involve business dealings on behalf of third persons can raise questions of propriety, the relationship does not create a per se conflict of interest. Because conflicts can nonetheless arise from such relationships, the committee turned to the Illinois Code: Canon 5 directs a lawyer to exercise professional judgment on the client's behalf, and Rule 5-107(a) requires representing a client with undivided fidelity.

The committee anchored the answer in Rule 5-101(a), under which a lawyer may not accept employment, except with the client's consent after full disclosure, if the exercise of his professional judgment will be or reasonably may be affected by his own business, property, or professional interests. The committee reasoned that every client is entitled to know whether the lawyer has an interest that could affect the lawyer's ability to act free of material influences, and that family relationships are only one of many such situations. It concluded that, if there are no other impediments, the lawyer may accept the employment after fully disclosing the relationship and obtaining the client's consent.

Currency note

This opinion was issued in 1983, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 1.7, with its Comment [11] on related lawyers), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Is it a conflict for a lawyer to take a client referred by a spouse?

A: The opinion concluded the spousal relationship is not a per se conflict of interest, though it can raise propriety questions that the lawyer must address through disclosure and consent.

Q: What does the lawyer have to do before taking the referral?

A: Per the opinion, under Rule 5-101(a) the lawyer may accept the employment, absent other impediments, only after fully disclosing the relationship and obtaining the client's consent.

Q: Why does disclosure matter here?

A: The committee reasoned that every client has the right to know whether the lawyer has a business, property, or personal interest that could affect the lawyer's ability to carry out the representation free of material influences.

Background and rules framework

The opinion applied former Illinois Code Canon 5, Rule 5-107(a) (undivided fidelity), and Rule 5-101(a) (the lawyer's own business, property, or professional interest affecting independent judgment, curable by consent after full disclosure). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7 and its Comment [11] (conflicts involving related lawyers), corresponding to ABA Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Illinois Code Canon 5, Rules 5-107(a), 5-101(a), 5-105(a) (applied in the opinion)
• Illinois RPC 1.7 with Comment [11] (2010 equivalent per the Board's affirmation)
• MR 1.7 (concurrent conflicts, including personal-interest conflicts)

See also

• ISBA Ethics Op. 870: Representing a Client's Competitor
• ISBA Ethics Op. 84-14: Lawyer Acting as Real Estate Broker
• ISBA Ethics Op. 88-05: Board Seat and a Rival Client

Source

• Landing page: https://www.isba.org/ethics/opinions/801