Must a Kentucky firm tell a client that one of its lawyers is married to a lawyer at the opposing firm?

Plain-English summary

The Committee addressed "spousal conflicts" where a partner in Firm X is married to a lawyer in Firm Y and the two firms are on opposite sides of a matter. It concluded that disclosure to the client is required when both spouses are working on the matter (Answer 1), and likewise when only one spouse is working on it (Answer 2); when neither spouse is working on the matter, disclosure is not mandatory but rests in the firm's informed discretion, with a caveat (Answer 3).

The opinion drew on KBA E-206 and ABA Formal Opinion 340 for the general principle that a lawyer should advise a client of all circumstances that might cause the client to question the firm's undivided loyalty, and let the client decide about the firm's employment. While spousal conflicts are not explicitly addressed in the Disciplinary Rules, the opinion noted such scenarios may suggest that a firm's ability to represent and safeguard a client's interests could be materially limited (citing DR 5-101 and DR 4-101), while also recognizing, per Blumenfeld v. Borenstein, that disqualification should not turn on status alone or be applied so as to inhibit a lawyer's entry into practice.

The opinion explained that these considerations informed Proposed Model Rule 1.8(i), a narrowly drafted rule under which discipline or disqualification is appropriate when closely related lawyers personally represent directly adverse clients absent client consent after consultation, and which does not impute one spouse's personal disqualification to the firm. For non-head-to-head scenarios that may "materially limit" a representation, the opinion concluded prudence would ordinarily call for seeking the clients' counseled consent (citing Model Rule 1.7(b)). It concluded the answers to Questions 1 and 2 are "yes," and that for Question 3 disclosure is not mandatory but should rest in the firm's informed discretion, with the caveat that disclosure may be the prudent course.

Currency note

This opinion was issued in 1987 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 Treat this page as historical context, not current guidance.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: Must a firm disclose that its lawyer is married to a lawyer on the other side?

A: When either spouse is working on the matter, yes. The opinion concluded disclosure is required both when both spouses work on the matter and when only one does.

Q: What if neither married lawyer is working on the case?

A: The opinion concluded disclosure is not mandatory in that situation, but rests in the firm's informed discretion, adding the caveat that disclosure may be the prudent course.

Q: Is one spouse's conflict imputed to the whole firm?

A: No. The opinion explained that Model Rule 1.8(i) does not impute a married lawyer's personal disqualification to the lawyer's firm, though directly adverse personal representation by the spouses requires client consent after consultation.

Background and rules framework

The opinion interprets the former Code's conflict and confidentiality provisions, DR 5-101 (personal-interest conflicts) and DR 4-101 (confidences and secrets), and analyzes then-Proposed Model Rule 1.8(i), the rule addressing lawyers related to lawyers representing adverse parties. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.8 (specific conflict rules). The analysis turns on whether the spousal relationship materially limits the representation and on the client's right to information bearing on the firm's loyalty.

Citations and references

Rules of Professional Conduct:

• DR 5-101; DR 4-101 (former Code)
• MR 1.7 (conflicts of interest); MR 1.8 (related-lawyer conflicts)

Cases:

• Blumenfeld v. Borenstein, 247 Ga. 406, 276 S.E.2d 607 (1981), disqualification should not turn on status alone

Other opinions cited:

• ABA Formal Op. 340 (1975); KBA Ethics Op. E-206 (1979); G. Hazard and W. Hodes, The Law of Lawyering 171 (1985)

See also

• ABA Formal Op. 494: Friendships With Opposing Counsel
• KBA Ethics Op. E-322: Office Sharing With a Prosecutor

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-323.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-323
Issued: September 1987

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.

Background: An attorney who is a partner in Firm X is married to an attorney in Firm Y. Both
firms follow a general policy of not having their attorney work on a matter in which
the attorney's spouse is involved. Nevertheless, a variety of situations have arisen,
and might arise in the future, involving such "spousal conflicts". Accordingly, the
following questions have been posed to the Committee.
Question 1:

Is it necessary for either firm to disclose to a client that the spouse of one of their
attorneys is employed by the firm retained by the client's opponent, when both of
the spouses are working on the matter?

Answer 1:

Yes.

Question 2:

Is the answer the same when only one of the spouses is working on the matter?

Answer 2:

Yes.

Question 3:

Is the answer the same when neither spouse is working on the matter?

Answer 3:

No, with a caveat.

References:

ABA Formal Opinion 340 (1975); KBA Ethics Opinion 206 (1979); Proposed
Model Rule 1.8(i); Blumenfeld v. Borenstein, 247 Ga. 406, 276 S.E. 2d 607 (1981);
G. Hazard and W. Hodes, The Law of Lawyering 171 (1985).
OPINION

To some extent these questions were addressed in KBA E-206 and ABA OP. 340, both of
which cited the Ethical Considerations of the Code, and reiterated the general principle that a
lawyer should advise a client of all circumstances that might cause the client to question the
undivided loyalty of the law firm and let the client make the decision as to the firm's employment
in the matter.
While so-called "spousal conflicts" are not explicitly addressed in the Disciplinary Rules,
the above described scenarios may give rise to a suggestion that the firms' ability to adequately

represent and safeguard their clients' interests may be materially limited. See DR 5-101 (lawyer's
personal interests in conflict with client interests) and DR 4-101 (protection of the confidences and
secrets of the client). On the other hand, it has been recognized that disqualification should not
turn on "status" alone, and that the rules of discipline should not be applied in a manner that would
necessarily inhibit a lawyer's entry into practice. Blumenfeld v. Borenstein, 247 Ga. 406, 276
S.E.2d 607 (1981).
All of these considerations were before the ABA House of Delegates when Proposed
Model Rule 1.8(i) was adopted by that body. Model Rule 1.8(i) is a rule of discipline, and was
drafted as narrowly as possible. As Comment (5) to that Rule points out, discipline or
disqualification is appropriate when closely related lawyers are personally representing clients
whose interests are directly adverse, unless client consent has been secured after consultation.
On the other hand, the Model Rules do not impute the personal disqualification of either spouse
to his or her firm. In addition, the Rule and Comments indicate that scenarios other than
"head-to-head" representation may present risks that the representation of one or both of the
clients may be "materially limited". In such situations prudence would ordinarily dictate that the
counseled consent of the clients be sought. See Model Rule 1.7(b) (the affected lawyers must
reasonably believe that the representation of the client(s) will not be materially limited, and
secure the consent of the client after consultation).
Taking into consideration our earlier opinion under the Code, ABA Op. 340, and the
interests analysis that led to Proposed Model Rule 1.8(i), the Committee concludes that the answers
to Questions 1 and 2 above are "yes". With respect to Question 3, we believe that disclosure is not
mandatory in all circumstances, but should instead rest within the informed discretion of the firm,
with the caveat that disclosure may be the prudent course. Cf. G. Hazard and W. Hodes, The Law
of Lawyering 171 (1985).

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.