My wife and I are sole practitioners with separate practices, and she is counsel to a state agency director. Can I represent her private client before a state board she has never represented?

Plain-English summary

Husband and wife are sole practitioners with completely distinct practices -- separate offices, addresses, stationery, business cards, and computers. The wife is also employed as legal counsel to the director of a state agency. The husband sought to represent a private client of the wife in a matter pending before a state board. The board is statutorily separate from the agency where the wife is employed, but it is funded by and located in the agency's facilities, and the wife has never represented the board. The husband asked whether continued representation of the client is permissible.

The opinion first notes that the spouses do not constitute a law firm for purposes of the Rules, because they do not present themselves to the public as a firm or conduct themselves as one (citing the comment to Rule 1.10). The imputed-disqualification principles of Rule 1.10 therefore do not prohibit the husband from continuing to represent the client.

The opinion then applies Rule 1.8(i), which bars a lawyer from representing a client in a matter where the lawyer knows a parent, child, sibling, or spouse is the lawyer representing an adverse party, except on client consent after consultation about the relationship. The opinion explains that the subsection reflects the concern that representation of opposing interests by closely related lawyers risks inadvertent breach of client confidences. On these facts, the opinion concludes Rule 1.8(i) does not disqualify the husband, because the wife is not the lawyer representing the adverse party (the board) and is not employed by it.

In practice

Under this opinion, neither of the two relationship-based disqualification theories reaches the husband. Rule 1.10 imputation does not apply because the spouses are not a firm, and Rule 1.8(i) does not apply because the triggering condition -- a closely related lawyer representing the adverse party -- is absent, since the wife neither represents nor is employed by the board. The opinion limits itself to the Rules of Professional Conduct and does not address the State Ethics Code.

Common questions

Q: Are two married sole practitioners treated as one law firm?

A: Not here. The opinion concludes the spouses do not constitute a firm because they do not hold out as or conduct themselves as a firm, so Rule 1.10 imputation does not apply.

Q: Does Rule 1.8(i) bar the husband from the representation?

A: No. The opinion concludes Rule 1.8(i) does not disqualify him because the wife is not the lawyer representing the adverse party and is not employed by it.

Q: What concern does Rule 1.8(i) address?

A: The opinion explains it reflects the perception that representation of opposing interests by closely related lawyers risks the inadvertent breach of client confidences.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.10 (imputed disqualification) and 1.8(i) (representation adverse to a party represented by a closely related lawyer), analogs of the corresponding Model Rules. The Rule 1.10 comment supplies the test for whether lawyers constitute a firm; Rule 1.8(i) turns on whether a closely related lawyer represents the adverse party, subject to client consent after consultation.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / RI RPC 1.10 (imputed disqualification; firm-status comment)
• MR 1.8 / RI RPC 1.8(i) (representation adverse to a party represented by a closely related lawyer)

Other opinions cited:

• Annotated Model Rules of Professional Conduct 154 (2d ed. 1992) (rationale of Rule 1.8(i))

See also

• RI EAP Opinion 92-56: lawyer-spouse hearing officer and attorney husband; conflict under 1.8(i)
• RI EAP Opinion 90-01: referring clients to an attorney's spouse who is a real estate agent

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-50.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-50, REQUEST #385
Issued August 25, 1993

Husband and wife are sole practitioners, having completely distinct practices including separate offices, addresses, stationery, business cards and computers. Wife is also employed as legal counsel to the director of a state agency. Husband seeks to represent a private client of wife in a matter now pending before a state board. The board is statutorily separate from the agency where wife is employed, but it is funded by, and located in, the agency's facilities. Wife has never represented the board. Husband has agreed to represent the client before the board and inquires as to whether continued representation is permissible.

At the outset, the Panel notes that husband and wife do not constitute a law firm for the purposes of the Rules of Professional Conduct because they do not present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm. See, Comment to Rule 1.10. Therefore, the imputed disqualification principles of Rule 1.10 do not prohibit husband from continuing to represent the client.

Rule 1.8 addresses, in part, legal representation by lawyer-spouses. That rule provides in pertinent part as follows:

Rule 1.8 Conflict of Interest: Prohibited Transactions.

(i) A lawyer shall not represent a client in any matter where the lawyer knows that the lawyer's parent, child, sibling, or spouse is the lawyer representing an adverse party to the transaction except upon consent by the client after consultation regarding this relationship (emphasis added).

Absent informed client consent, Rule 1.8(i) prohibits a lawyer from representing a client in a matter directly adverse to another person whose retained counsel is closely related to the lawyer. Subsection (i) reflects the perception that representation of opposing interests by closely related lawyers risks the inadvertent breach of client confidences. Annotated Model Rules of Professional Conduct, at 154 (2nd ed. 1992).

Under the facts as presented, the Panel is of the opinion that the provisions of Rule 1.8(i) do not disqualify husband from representing the client. Wife is not the lawyer representing the adverse party, the board, and is not employed by the same.

The Panel's guidance is restricted to interpretations of the Model Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulations or laws that may have bearing on the issue raised by this inquiry.