Ezel / Ethics Opinions / OSB
OSB February 2016

Can a lawyer represent a buyer or seller in a real estate deal in which the lawyer's spouse is the broker earning a commission?

Short answer: Qualified yes: because the spouse-broker is not the lawyer's client there is no client-client conflict, but the lawyer must assess whether interests in or duties to the spouse create a personal-interest conflict under RPC 1.7(a)(2); per In re Spencer the prospect of a commission alone does not create one.

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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2016
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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 on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer is married to a real estate broker but does no legal work for the broker. The opinion asks whether the lawyer may represent a seller in drafting a listing agreement with the broker spouse, and whether the lawyer may represent a seller or buyer in a transaction from which the spouse will earn a commission. The opinion answers yes, qualified, to both.

Because the broker is not the lawyer's client, the opinion treats the current-client conflict provisions of Oregon RPC 1.7 (a conflict between two clients) as inapplicable. The live question is whether the lawyer's own personal interests, or the lawyer's interests in and responsibilities to the spouse, create a significant risk of materially limiting the representation under Oregon RPC 1.7(a)(2). The opinion observes that marriage is a civil contract (ORS 106.010) carrying shared rights, liabilities, and interests, and that the degree to which spouses share them affects how significant that risk is; Oregon courts impose a high fiduciary duty between spouses, which arguably alone may trigger the lawyer's RPC 1.7(a)(2) duties.

The opinion relies on In re Spencer, where the Oregon Supreme Court held that a lawyer's prospect of receiving a sales commission was not, standing alone, enough to create a conflict under RPC 1.7(a)(2). The court cautioned that if other aspects of a real estate transaction can create a conflict, a careful lawyer serving as both legal advisor and broker in the same transaction would be advised to satisfy the advice-and-consent requirements of both RPC 1.8(a) and RPC 1.7(b), because the same transaction can implicate both rules.

In practice

The opinion holds that, under the Oregon rules as interpreted in In re Spencer, representing a party in a deal where the lawyer's spouse is the broker is permitted but requires a personal-interest conflict analysis under RPC 1.7(a)(2), and that the commission prospect by itself does not create a conflict. The analysis turns on whether the lawyer's interests in or duties to the spouse create a significant risk of materially limiting the representation; where the lawyer serves as both advisor and broker, In re Spencer points to satisfying both RPC 1.8(a) and 1.7(b). Verify the current text of Oregon RPC 1.7 and 1.8 before relying on any specific point.

Common questions

Q: Can I close a real estate deal for a client when my spouse is the broker on it?

A: Qualified yes. The opinion concludes the spouse is not the lawyer's client, so the analysis is a personal-interest conflict question under RPC 1.7(a)(2), not a client-client conflict.

Q: Does my spouse earning a commission automatically disqualify me?

A: No. The opinion follows In re Spencer in concluding that the prospect of a commission, standing alone, does not create a conflict under RPC 1.7(a)(2).

Q: What if I act as both lawyer and broker in the same transaction?

A: The opinion notes In re Spencer's caution that a careful lawyer in that position would be advised to satisfy the advice-and-consent requirements of both RPC 1.8(a) and RPC 1.7(b).

Background and rules framework

The opinion interprets Oregon RPC 1.7(a)(2) and (b) (personal-interest conflicts and informed consent), corresponding to Model Rule 1.7; Oregon RPC 1.8(a) (business transactions with a client), corresponding to Model Rule 1.8; and Oregon RPC 1.0(b) and (g) (defined terms), corresponding to Model Rule 1.0, against ORS 106.010 (marriage as a civil contract).

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.7(a)(2), 1.7(b) / Model Rule 1.7 (personal-interest conflicts; informed consent)
  • Oregon RPC 1.8(a) / Model Rule 1.8 (business transactions with a client)
  • Oregon RPC 1.0(b), 1.0(g) / Model Rule 1.0 (defined terms)

Statutes:

  • ORS 106.010 (marriage as a civil contract)

Cases:

  • In re Spencer, 355 Or 679, 330 P3d 538 (2014)
  • In re Harrington, 301 Or 18, 718 P2d 725 (1986)
  • In re Weidner, 310 Or 757, 801 P2d 828 (1990)
  • Matter of Marriage of Eltzroth, 67 Or App 520, 679 P2d 1369 (1984)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-46 (formation of the lawyer-client relationship)

See also

Source

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