When two lawyers on opposite sides of a matter are spouses, partners, siblings, or other relatives, what must they and their firms do about the conflict?

Plain-English summary

The Commission addressed three hypothetical situations in which two lawyers related to each other (as spouses, unmarried living partners, fiancees, siblings, parent and child, or in-laws) end up on opposite sides of a matter: (1) Lawyer A directly opposing Lawyer B; (2) Lawyer A opposing Lawyer B's firm, where B is not personally involved; and (3) Lawyer A's firm opposing Lawyer B's firm, where neither related lawyer is involved.

The Commission held that Rule 3.4(a), which requires disclosure before accepting employment of any relationship with an adverse party or interest that could influence the client's choice of lawyer, requires disclosure to both clients in all three situations whenever the lawyers have one of the six relationships. Whether written consent is also needed turns on Rule 3.4(f), which bars accepting employment, absent informed written consent after full disclosure, where the lawyer's professional judgment will be or reasonably may be affected by the lawyer's interest. Because that depends on the particular facts and the nature of the relationship, the Commission set no hard rules but offered guidance: Rule 3.4(f) most likely applies in the first hypothetical (the related lawyers directly opposed), so obtaining each client's written consent is the preferred practice; in the second, it most likely applies where Lawyer A's relationship to the uninvolved Lawyer B is spouse, fiancee, or unmarried living partner; and in the third, it generally does not apply, so the Rule 3.4(a) disclosure usually suffices.

The Commission then addressed Rule 3.4(b), which absolutely prohibits accepting employment, even with full disclosure and consent, where the lawyer's independent professional judgment will be or is likely to be adversely affected, or where it would likely involve representing differing interests. This too is fact-specific and cannot be reduced to an across-the-board rule, but the Commission stressed that lawyers in these relationships must be especially sensitive to conflict problems, particularly spouses, fiancees, and unmarried living partners, and that whenever Rule 3.4(b) disqualifies a related lawyer, Rule 3.4(k) imputes that disqualification to all members and associates of that lawyer's firm. The Commission added that representation of differing interests by lawyer-spouses should probably be avoided in most instances, citing Maine Bar Association Opinion No. 70 (12/4/78), while the same by their firms, or by more distant relatives, is generally less troubling. Two members dissented from dividing the six relationships into two groups carrying different standards, arguing that the nature of the specific relationship, not its category, should control.

Currency note

This opinion was issued in 1979, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis; current Maine and Model Rule treatment of related-lawyer conflicts differs from the former rules applied here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Do related lawyers on opposite sides always have to tell their clients?

A: The opinion concluded yes. Rule 3.4(a) required disclosure to both clients in all three hypotheticals whenever the two lawyers had one of the six listed relationships.

Q: When is the clients' written consent needed, not just disclosure?

A: The opinion concluded that written consent is required where Rule 3.4(f) applies, which is most likely when the related lawyers are directly opposed, and especially when they are spouses, fiancees, or unmarried living partners; it is generally unnecessary where only their firms are opposed.

Q: Can the relationship bar the representation even if both clients consent?

A: The opinion concluded yes. Rule 3.4(b) can prohibit the employment regardless of consent where the lawyer's independent judgment is likely to be adversely affected, and Rule 3.4(k) then disqualifies the lawyer's entire firm.

Background and rules framework

The opinion interprets the former Maine Bar Rules: Rule 3.4(a) (disclosure of the lawyer's interest or relationship before accepting employment), Rule 3.4(f) (employment barred absent informed written consent where the lawyer's judgment may be affected by the lawyer's interest), Rule 3.4(b) (absolute conflict bar where independent judgment will likely be adversely affected or differing interests represented), and Rule 3.4(k) (imputation to partners and associates). These correspond to Model Rule 1.7 (concurrent conflicts, including personal-interest conflicts) and Model Rule 1.10 (imputation). The analysis turns on how directly each related lawyer is involved and on the closeness of the particular relationship.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (concurrent conflicts of interest); Model Rule 1.10 (imputation)
• Maine Bar Rules 3.4(a), 3.4(f), 3.4(b), 3.4(k)

Other opinions cited:

• Maine Bar Association Opinion No. 70 (12/4/78): representation of differing interests by lawyer-spouses should probably be avoided
• EC 5-1 of the ABA Code of Professional Responsibility: a lawyer's undivided loyalty to the client, free of compromising influences

See also

• Maine Ethics Op. 8: Associate Met the Other Spouse
• Maine Ethics Op. 21: Driver and Passenger Conflict
• Maine Ethics Op. 4: Zoning Appeal, Partner as Town Counsel

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=88455

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: October 17, 1979

Facts

The Commission has received a request, initially addressed several months ago to the Legal Ethics Committee of the Maine Bar Association, for an advisory opinion regarding conflicts of interest between related lawyers. The request deals with three hypothetical situations:

• Lawyer A versus Lawyer B, where two related lawyers are involved on opposite sides of a matter.

• Lawyer A versus Lawyer B's firm, where only one of the related lawyers is actually involved in the matter, but the opposing party is represented by the other lawyer's firm, although that other lawyer has no involvement in the case.

• Lawyer A's firm versus Lawyer B's firm, where the two firms are on opposite sides of a matter but neither of the related lawyers is involved.

The question posed is what are the ethical obligations of Lawyer A and Lawyer B, and their respective firms, in these three hypothetical situations, where Lawyer A and Lawyer B are related to each other as spouses, unmarried living partners, fiancees, siblings, parent and child, or in-laws.

Opinion

Rules 3.4(a), 3.4(f) and 3.4(b) of the new Maine Bar Rules set forth the minimum standards of ethical conduct required in these situations:

• Applicability of Rule 3.4(a). Rule 3.4(a) provides:

(a) Disclosure of Interest. Before accepting any professional employment a lawyer shall disclose to the prospective client his relationship, if any, with the adverse party; his interest, if any, in the subject matter of the employment; all the circumstances regarding his relationship to the parties; and any interest or connection with the matter at hand that could influence the client in the selection of a lawyer.

The Commission interprets this Rule to require disclosure to both clients, in all three hypothetical situations, where Lawyer A and Lawyer B have any of the six relationships set forth in the Facts.

• Applicability of Rule 3.4(f). Rule 3.4(f) provides:

(f) Interest of Lawyer. Except with the informed written consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be, or reasonably may be, affected by any interest of the lawyer.

Obviously, a determination as to whether this Rule applies to any given case must depend upon the particular facts of that case. In the context of the hypotheticals presented at the beginning of this opinion, the issue would be whether the relationship between the lawyers involved is one which will, or reasonably may, affect the lawyer's ability to exercise professional judgment because of his own financial, business, professional, or personal interests. See Reporter's Notes to Rule 3.4(f). Since the nature of the relationship between Lawyer A and Lawyer B (friendly, supportive, estranged, etc.) clearly affects the likelihood of there being an impact on the ability of the lawyers involved to exercise their professional judgment, an advisory opinion by this Commission cannot set forth hard and fast rules that would govern all cases. A few observations are, nevertheless, in order.

To begin with, the Commission believes that the first hypothetical presented (Lawyer A versus Lawyer B) represents the type of situation where Rule 3.4(f) is most apt to apply, regardless of which of the six above-mentioned relationships is involved. Accordingly, the Commission would recommend, as the preferred practice, that the informed written consent of each related lawyer's client be obtained, in a case involving any of the six relationships involved, before the related lawyer accepts employment by the client.

With regard to the second hypothetical presented (Lawyer A versus Lawyer B's firm), the Commission believes Rule 3.4(f) is most likely to apply to Lawyer A when the relationship to Lawyer B (who is not involved in the case) is as spouse, fiancee, or unmarried living partner, due to the degree of intimacy normally found in such relationships. The preferred practice would therefore be to obtain the informed written consent of Lawyer A's client in that situation. The likelihood of Rule 3.4(f) applying to Lawyer B's firm in this situation would seem more remote and would generally depend upon the relationship between the lawyer handling the case and Lawyer B. Finally, it would seem that Rule 3.4(f) would generally not apply to either side where Lawyer A and Lawyer B are siblings, parent and child, or in-laws, since by definition only one of the related lawyers would have any involvement in the case and the closeness of these relationships is not usually such that a conflict could reasonably be expected to arise between a lawyer's personal interest and the interest of his client. See Reporter's Notes to Rule 3.4(f). In all of these cases, of course, full disclosure would have to be made pursuant to Rule 3.4(a), see supra, so it would not seem unduly burdensome (and it would certainly be the preferred practice) for both lawyers involved to also secure the client's express written consent to the representation in light of the potential (albeit remote, in most cases) conflict of interest. Failure to obtain such written consent would not be a violation of the Maine Bar Rules, however, except in those cases to which Rule 3.4(f) is found to apply.

With regard to the third hypothetical presented (Lawyer A's firm versus Lawyer B's firm), the Commission believes that in most cases Rule 3.4(f) would probably not apply with regard to any of the six relationships mentioned above, so that generally no written consent from either client would be required where neither related attorney will have any involvement in the case. In such cases, the disclosure requirements of Rule 3.4(a) will generally suffice to protect the clients involved from potential conflict of interest with their lawyers. In those cases where the disclosure requirements alone will not suffice, due to the special circumstances of the relationship involved, then Rule 3.4(f) would apply and the informed written consent of the client would have to be obtained.

• Applicability of Rule 3.4(b). The final issue to be addressed in this opinion concerns Rule 3.4(b), which provides:

(b) Conflict of Interest. A lawyer shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests, except to the extent such employment is permitted by subdivision (d) of this rule.

This Rule goes beyond the consent requirement of Rule 3.4(f) and absolutely prohibits acceptance of employment by a lawyer (even where there has been full disclosure and written consent by the client) in situations where the exercise of the lawyer's independent professional judgment will be, or is likely to be, adversely affected by the acceptance of such employment. As is the case with Rule 3.4(f), however, a determination as to the applicability of this Rule to any given case must be made on the basis of the particular facts of that case. Accordingly, this Commission is unable to set forth, in an advisory opinion, an across-the-board interpretation of the applicability of Rule 3.4(b) to the types of situations set forth in the Facts. It is important to note, however, that whenever the facts of a given case would require a related lawyer to disqualify himself from participation because of Rule 3.4(b), then all other members and associates of the disqualified lawyer's firm must also be disqualified under Rule 3.4(k). The Commission would also make the following observations:

Rule 3.4(b) does not automatically prohibit lawyers having any of the six relationships being dealt with here, or their respective firms, from representing differing interests. On the other hand, lawyers involved in any of these situations must be extremely sensitive to the very real conflict problems that can arise because of a close personal relationship with opposing counsel. This is particularly true in the case of lawyers who are husband and wife, fiancees, or unmarried living partners, where the very nature and intimacy of the relationship can give rise to personal, psychological and/or pecuniary considerations that require very close attention to the strictures of Rule 3.4(b). As pointed out in the Reporter's Notes to this Rule, doubts about potential conflicts between a lawyer's personal interests and his clients' interests should be resolved against undertaking representation. This is consistent with the underlying rationale of the Rule, which is to promote a lawyer's undiluted loyalty to his client, free of compromising influences and loyalties. See EC 5-1 of the ABA Code of Professional Responsibility.

Although not necessarily prohibited by the Maine Bar Rules, the representation of differing interests by lawyers who are husband and wife, fiancees, or unmarried living partners, should probably be avoided in most instances. See Maine Bar Association Opinion No. 70 (12/4/78). The very appearance of impropriety and potential conflict in such a situation argues for its avoidance even if, technically, Rule 3.4(b) would not be violated. Representation of differing interests by the firms of these spouses, on the other hand, where at least one of the lawyer-spouses is not at all involved, is less troubling. Similarly, representation of differing interests by lawyers who are siblings, parent and child, or in-laws, or by their respective firms, is generally far less problematical, in terms of the appearance of impropriety, than the case of lawyer-spouses. In all of these situations, of course, extreme care must be taken to comply with the requirements of Rules 3.4(b) and 3.4(k), as noted in the preceding paragraph of this Opinion; and whenever these rules are found to apply to a given case, employment may not be accepted by the related lawyer or by any of his partners or associates.

Dissent to Ethics Opinion #79-3

To the extent that the Commission's opinion divides the six relationships that potentially give rise to conflicts of interest into two groups (spouses, fiancees, or unmarried living partners in one; siblings, parent and child, or in-laws in the other) with the suggestion of differing standards for the two groups, two members dissent.

Initially the Commission notes that the nature of the relationships between Lawyer A and Lawyer B (friendly, supportive, estranged, etc.) affects the likelihood of there being an impact on the ability of the lawyers involved to exercise their professional judgment. This seems to be a recognition that the nature of the specific relationship involved in any given case is a crucial variable in determining the ethical consideration. If the Commission spoke in general terms of extremely close, intimate relationships as one category, and less close, less intimate relationships as the other, this dissenting opinion would not be necessary. However, by dividing the six relationships under discussion into two separate categories several times in the opinion, the Commission may be creating the impression that there is a presumption of a greater likelihood of ethical problems where Lawyer A and Lawyer B are spouses, fiancees, or unmarried living partners than if they are siblings, parent and child, in-laws. (For example, the opinion states that the representation of differing interests by lawyers who are spouses, fiancees, or unmarried living partners should probably be avoided, but that for siblings, parent and child, or in-laws to do so is far less problematical.) In the opinion of the dissenter, this particular division of the relationships is not required by logic, and is in fact unreasonable and unnecessary.

Prior to adoption of the opinion, members of the Commission appeared to agree that the relationship called 'unmarried living partners' could include mere roommates, as well as two people involved in a more intimate relationship with each other. There seems no logical reason why mere roommates should avoid representing differing interests to a greater extent than siblings. To thus classify roommates in the same category as spouses is simply not reasonable. Siblings, or a parent and a child, might well have emotional and/or financial bonds that create at least as great a likelihood of conflicts of interest as recently engaged fiancees, or estranged spouses. To include siblings and parents and children in the same group as in-laws appears as unreasonable as including roommates in the same group as spouses.

If the phrase 'unmarried living partners' is taken to include only intimate relationships akin to marriage, the division of relationships made by the Commission appears to rest on a particular type of intimacy which is presumably present in this first group of relationships (spouses, fiancees, or unmarried living partners) and absent in the other. The Commission appears to be drawing distinctions as to preferred ethical practices for two sets of relationships while the rationale for the particular division of the relationships into the two sets is open to question. Accurately making broad assumptions about human nature under a variety of circumstances may well be beyond the province of the Commission.

Given that the Commission initially noted that the application of an ethical rule to any given case must depend on the particular facts of the case, and that the nature of the relationship between the lawyers involved would have a bearing on the likelihood of conflicts of interest such that it could not set hard and fast rules, the repeated implication that one group of relationships appears more likely to lead to conflicts than the other is, in the dissenters' opinion, unwise and unnecessary.