Can a lawyer take a case against opposing counsel who works at the same firm (or office) as the lawyer's spouse?

Plain-English summary

The committee addressed whether a lawyer may represent a client when the opposing counsel is employed by the same firm or organization as the lawyer's spouse, and answered yes to both variations (including where the opposing counsel works in the same office that employs the spouse). It relied on ABA Formal Opinion 340, under which a firm employing a lawyer whose spouse is a lawyer at another local firm need not fear consistent or mandatory disqualification when the two firms represent opposing interests, but must always be sensitive to the possibility of disqualification and to the wishes of its clients; married lawyers must guard at all times against inadvertent violations of their professional responsibilities arising from the marital relationship.

The committee grounded the safeguards in the former Code. A lawyer must exercise professional judgment free from compromising influences and may not let personal interest or third persons' desires affect loyalty to the client (EC 5-1); where personal interests will, or within reasonable probability could, adversely affect services to a client, the lawyer must refuse the employment (EC 5-2); and DR 5-101 obligates the lawyer to disclose to the client any personal interests that may affect professional judgment, leaving the final decision to employ with the client after full disclosure. The committee emphasized the duty to preserve client confidences and secrets and not to use them for a third person's advantage absent the client's consent after full disclosure (citing the confidentiality rule and its enumerated exceptions), and concluded that under no circumstances should a husband and wife be opposing counsel in the same case. It closed with EC 9-6: both spouses must avoid not only impropriety but its appearance, and a lawyer who would not inspire the client's and the public's confidence, respect, and trust by taking a case should withdraw.

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer oppose counsel from the same firm or office as the lawyer's spouse?

A: Yes, under this opinion, with no automatic disqualification, but the lawyer must disclose the personal interest to the client and withdraw if judgment would be affected.

Q: Can spouses be lawyers on opposite sides of the same case?

A: No. The committee said that under no circumstances should a husband and wife be opposing counsel in the same case.

Q: What must the lawyer do before taking such a case?

A: Disclose the personal interest to the client under DR 5-101 and assess whether it would adversely affect services; if so, refuse or withdraw (EC 5-1, 5-2, 9-6).

Background and rules framework

The opinion applies the former Code's confidentiality rule (DR 4-101) and DR 5-101 (a lawyer's own interests), with EC 5-1, EC 5-2, and EC 9-6, to the conflict posed by married lawyers on opposite sides, following ABA Formal Opinion 340. The modern analogs are Model Rule 1.7 (concurrent conflicts, including the personal-interest conflict of related lawyers) and Model Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• DR 4-101 (confidences and secrets), DR 5-101 (lawyer's own interests), EC 5-1, EC 5-2, EC 9-6; modern analogs Model Rule 1.7 and Model Rule 1.6

Other opinions cited:

• ABA Formal Opinion 340 (married lawyers at opposing firms)

See also

• KBA Ethics Op. E-222: Dual Certification on a Title Exam
• KBA Ethics Op. E-207: Joint-Petition Divorce Lawyer Taking a Side

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-206.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-206
Issued: January 1979

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question 1:

May an attorney employed by a firm or in private practice represent a client where the opposing counsel is employed by the same firm or legal organization as the attorney’s spouse?

Answer 1:

Yes.

Question 2:

May an attorney employed by a firm or in private practice represent a client where the opposing counsel is employed by the same firm or legal organization and the opposing counsel works in the same office that employs the attorney’s spouse?

Answer 2:

Yes.

References:

DR 101(A)(B)(C), 5-101; EC 1, 5-1, 5-2, 9-6; ABA Formal Opinion 340
OPINION

According to ABA Formal Opinion 340,
…. a law firm employing a lawyer whose spouse is a lawyer associated with another local law firm need not fear consistent or mandatory disqualification when the two firms represent opposing interest, yet it is both proper and necessary for the firm always to be sensitive to both the possibility of disqualification and the wishes of its clients. Marriage partners who are lawyers must guard carefully at all times against inadvertent violations of their professional responsibilities arising by reason of their marital relationship.
A lawyer, in the exercise of his/her professional judgment, must be free from influences and loyalties to which he/she may compromise. A lawyer must never allow personal interest or the desires of third persons to affect his/her loyalty to the client (EC 5-1).
Were a lawyer to find himself/herself in a position where personal interests or desires will affect, or within reasonable probability, such interests could adversely affect services given to a client or prospective client, the lawyer must refuse to accept employment (EC 5-2).

DR 5-101 states that a lawyer has an obligation to disclose to his/her client any personal interests which may affect the lawyer’s professional judgment. After full disclosure, the final decision to employ or not to employ rests with the client.
The relationship between attorney and client is a sacred one. It is imperative that a lawyer preserve the confidences and secrets of a client acquired within the realm of this professional relationship. A lawyer shall not knowingly ever use a confidence or secret for the advantage of a third person unless the client consents after full disclosure (DR 101(A) and (B)). The only exceptions to this rule are strictly enumerated in DR 101(C).
A husband and wife must guard the attorney/client relationship vigorously. Any personal interest which could adversely affect the advice or services given to a client must be carefully assessed. After full disclosure to the client, if the attorney feels that his/her personal interests would interfere, then the attorney should withdraw from the case.
The fiduciary relationship existing between a lawyer and client necessitates the highest confidence and secrecy. “A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client” (EC 1). It follows therefore, that under no circumstances should a husband and wife be opposing counsel in the same case.
In any event, under EC 9-6, both husband and wife must avoid not only “impropriety, but the appearance of impropriety.” If the attorney determines that by taking a case, he or she would not inspire the confidence, respect, and trust of his/her client and of the public, then the attorney should withdraw.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.