Does a lawyer's marriage to another lawyer disqualify the lawyer from a case where the spouse's firm represents the police agencies whose officers will testify?

Plain-English summary

A married couple both belonged to a law firm that represented Cities A and B; one spouse, formerly a city prosecutor, had become a full-time assistant public defender, while the other still handled city prosecutions for the firm on rare occasions. The assistant public defender defended felony cases in which officers from Cities A and B might testify as arresting officers or tactical-unit members. The inquiry asked whether the assistant public defender could accept those felony assignments and, if so, whether disclosure of the spouse's firm's representation of the cities was required.

The committee noted that the Illinois Rules contain no provision specifically governing whether lawyers related by blood or marriage may represent opposing parties, and that Illinois had omitted the subparagraph of ABA Model Rule 1.8 that addresses lawyers related by marriage. With no express prohibition, the committee turned to the general conflict provisions, Rule 1.7(b) and Rule 1.9(a). It relied on ISBA Opinion 783 (a blood-relationship case holding that a family tie to opposing counsel does not per se disqualify a lawyer, the question being whether the relationship will or reasonably may affect professional judgment) and ISBA Opinion 85-8 (father defending criminal cases in a county where his son was an assistant state's attorney was proper where other prosecutors handled the cases).

The committee concluded that a marriage relationship should not be assumed to breach client confidences or to forbid representation of differing interests, but the real possibility of an inadvertent rule violation must be weighed case by case. If the assistant public defender reasonably believes a particular representation may be materially limited by the marriage, the representation must be declined; standing alone, however, the marriage does not disqualify the assistant public defender. Even where consent is not required, the committee said disclosure of the marriage relationship is the better practice where the assistant public defender's loyalty might be questioned, consistent with Rule 1.4.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 1.4, 1.7, and 1.9), 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: Does marriage to another lawyer automatically disqualify a lawyer from opposing that lawyer's firm's interests?

A: No. The opinion concluded marriage does not per se disqualify spouses from representing differing interests; the test is whether the relationship will or reasonably may materially limit the particular representation under Rule 1.7(b).

Q: When must the assistant public defender decline a case?

A: The opinion concluded the assistant public defender must decline where she reasonably believes that representation of a defendant may be materially limited by the marriage relationship in that case.

Q: Is disclosure of the marriage to the client required?

A: The opinion concluded that even where the Rules may not require consent, disclosure of the marriage relationship is the better practice where loyalty could be questioned, consistent with Rule 1.4's duty to explain a matter so the client can make informed decisions.

Background and rules framework

The opinion applied Rule 1.7(b) (a representation that may be materially limited by responsibilities to another or by the lawyer's own interests) and Rule 1.9(a) (duties to former clients) to the spouses' differing roles, and Rule 1.4 (communication) to the disclosure question, noting that Illinois had not adopted the Model Rule 1.8 subparagraph addressing lawyers related by marriage (Model Rules 1.4, 1.7, 1.9).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest) / Illinois Rule 1.7(b)
• Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9(a)
• Model Rule 1.4 (communication) / Illinois Rule 1.4

Other opinions cited:

• ISBA Opinion 783: family relationship to opposing counsel is not per se disqualifying.
• ISBA Opinion 85-8: father may defend criminal cases in a county where his son is an assistant state's attorney handled by others.

See also

• ISBA Ethics Op. 90-27: PD Office and a Client's Secret
• ISBA Ethics Op. 90-29: Part-Time Prosecutor Representing Prisoners
• ISBA Ethics Op. 90-34: City Attorney and Public Defender Partnership

Source

• Landing page: https://www.isba.org/ethics/opinions/9024