NYSBA 2011-11-17

When spouses at different firms end up on opposite sides of a case, is the conflict imputed to their colleagues, and can it be waived?

Short answer: Not automatically. A Rule 1.10(h) spousal conflict is not automatically imputed to colleagues in either firm, but may be imputed on the facts; where imputed, in civil matters the conflict is often waivable by informed consent, and the original lawyer may share intake confidences with substitute counsel with the client's informed or implied consent.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 890: Spouses Opposing at Different Firms

Short answer: A Rule 1.10(h) conflict barring spouses from personally opposing each other in litigation is not automatically imputed to colleagues in their firms, though it may be on the facts; where imputed, in civil matters the conflict is often waivable by the affected clients' informed consent, and the original lawyer may share intake confidences with substitute counsel with the client's informed or impliedly authorized consent.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquirer manages a legal services office; his wife is in private practice at a local firm in the same small city. His wife was retained to bring an eviction, and the respondent sought help from the inquirer's office. The committee addressed whether the Rule 1.10(h) bar on spouses personally opposing each other is imputed to their colleagues, whether consent can cure any imputed conflict and from which clients, and whether the inquirer could share intake information with outside counsel he recommends (paragraphs 1 through 4).

The committee agreed the inquirer cannot personally take the case against his wife. Rule 1.10(h) allows the spouses to proceed only if each concludes he or she can adequately represent the client (the same test as Rule 1.7(b)(1)) and both clients consent; the committee thought it would be a rare case where spouses could reasonably conclude they could adequately represent opposing clients as lead counsel. On imputation, Rule 1.10(a) automatically imputes conflicts under Rules 1.7, 1.8, and 1.9, but not under Rule 1.10(h). Following N.Y. State 654 and 660, the committee held the spousal conflict is not automatically imputed to colleagues, but may be on the facts (paragraphs 5 through 7).

The committee distinguished N.Y. State 654, where a two-lawyer firm was wholly disqualified largely because it was a criminal matter raising public-perception concerns. This was a civil landlord-tenant case, so whether a colleague in either office could proceed turns on the objective Rule 1.7(a)(2) test: whether a significant risk exists that the litigating lawyer's judgment would be adversely affected by the personal relationship, considering factors like firm size and whether one or both spouses withdraw. The committee thought that risk quite likely where a colleague litigates directly against a spouse and the offices are small. Any such conflict is curable by the affected clients' informed consent under Rule 1.7(b)(1), often conditioned on screening the disqualified spouse, and whether one or both clients must consent depends on the circumstances (paragraphs 8 through 10).

Finally, intake information is confidential under Rule 1.18(b) whether or not representation is undertaken. A colleague within the inquirer's own office may receive it (Rule 1.6 Comment [5]), but outside substitute counsel may receive it only with the respondent's informed consent (Rule 1.6(a)(1)) or where disclosure is impliedly authorized to advance the client's interests and is reasonable or customary (Rule 1.6(a)(2)); the committee found briefing new counsel likely reasonable and customary here, given the inquirer's ongoing involvement, unless the intake information was adverse to the client (paragraph 11).

In practice

The opinion holds that, under New York Rules 1.7, 1.10, and 1.6 as they stood at the time, a spousal conflict is treated differently from most others on imputation: Rule 1.10(a) does not automatically reach Rule 1.10(h) conflicts, so colleagues are not automatically disqualified, but a fact-specific Rule 1.7(a)(2) analysis can impute the conflict, especially in small offices where a colleague litigates directly against a spouse. The committee made the civil-versus-criminal distinction matter, treating the public-perception concerns of N.Y. State 654 as specific to criminal matters, and it confirmed that imputed civil conflicts are generally waivable by informed consent, often with screening. On confidentiality, it allowed intra-office sharing of intake information freely and outside-counsel sharing only by informed or impliedly authorized consent under Rule 1.6(a).

Common questions

Q: My spouse is opposing counsel in a case. Is my whole firm disqualified?

A: Not automatically. The committee held that a Rule 1.10(h) spousal conflict is not automatically imputed under Rule 1.10(a), though it may be imputed on the particular facts (paragraphs 6 through 8).

Q: What decides whether my colleague can take the case?

A: The objective Rule 1.7(a)(2) test: whether there is a significant risk the colleague's judgment would be adversely affected by the spousal relationship, weighing factors like firm size and whether one or both spouses withdraw (paragraph 8).

Q: Can the clients consent to the conflict?

A: Yes, in this civil matter. The committee said any imputed conflict can be cured by the affected clients' informed consent under Rule 1.7(b)(1), often conditioned on screening the disqualified spouse (paragraphs 9 through 10).

Q: Can I give my intake notes to the outside lawyer I refer the client to?

A: Only with consent. Intake information is confidential under Rule 1.18(b); outside counsel may receive it with the client's informed consent or where disclosure is impliedly authorized and reasonable or customary under Rule 1.6(a)(2) (paragraph 11).

Background and rules framework

The opinion interprets New York Rule 1.10(h) (spouses opposing each other), Rule 1.10(a) (imputation of Rule 1.7/1.8/1.9 conflicts), Rule 1.7(a)(2) and (b)(1) (personal-interest conflicts and their cure), Rule 1.18(b) (prospective-client confidences), and Rule 1.6(a) (confidentiality and authorized disclosure), corresponding to ABA Model Rules 1.10, 1.7, 1.18, and 1.6. It reads Rule 1.10(h) as a specific instance of Rule 1.7(a)(2) for imputation purposes.

Citations and references

Rules of Professional Conduct:

MR 1.10 / NY Rule 1.10(a), (h): imputation; spouses opposing each other
MR 1.7 / NY Rule 1.7(a)(2), (b)(1) and Comment [2]: personal-interest conflict; cure
MR 1.6 / NY Rule 1.6(a) and Comment [5]; NY Rule 1.18(b): confidentiality; intake confidences

Other opinions cited:

N.Y. State 654 (1993): spouse of a district attorney; criminal matter, conflict imputed and non-waivable on those facts
N.Y. State 660; N.Y. State 638 (1992); N.Y. State 632 (1992): imputation turns on the facts and underlying policies

Source

Landing page: https://nysba.org/ethics-opinion-890/