Can married lawyers appear on opposite sides of the same criminal appeal, one for the state and one for the defendant?

Plain-English summary

Lawyer X was a state employee who represented the state at the appellate level in criminal matters, with no role at trial and no prosecutorial discretion over charges, pleas, parole, or confinement; X's duty was to argue to the appellate courts to uphold convictions. Lawyer Y, X's spouse, was a trial lawyer handling criminal matters at the trial and appellate levels in the same state. Because X did not appear at trial, the spouses would never be opposite at that stage, but they could appear on opposite sides of the same criminal case on appeal. The question was whether Y could represent the defendant while X represented the state in the same appeal, and whether any ethical problem could be resolved.

The committee said Rule 1.8(i) provides that a lawyer married to another lawyer shall not personally represent a client directly adverse to a person the lawyer knows is represented by the spouse, except with the client's consent after consultation about the relationship. So X and Y could not personally represent clients with adverse interests in the same matter without each client's informed consent (citing State Bar of California Op. No. 1984-83). The appellate nature of the representation did not change the result: although an appellate lawyer may have fewer occasions to exercise discretion, the closeness of the marital relationship makes an inadvertent breach of confidence a substantial possibility, and a spouse's personal or financial interest may affect the lawyer's loyalty and judgment (citing ABA Formal Op. 340). These risks exist at the appellate level too, for example the risk that a lawyer might soften an argument or not press a point (such as arguing the spouse, as trial counsel, had erred), so the committee found no reason to limit Rule 1.8(i)'s application.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can married lawyers be on opposite sides of the same case?

A: The committee said only with each client's informed consent; Rule 1.8(i) bars a lawyer from personally representing a client directly adverse to a person represented by the lawyer's spouse, absent consent after consultation.

Q: Does the conflict go away because the practice is purely appellate?

A: The committee said no; the appellate setting does not remove the potential for conflict, given the closeness of the marital relationship and the personal interests involved, so Rule 1.8(i) applies equally.

Q: Can the problem be cured?

A: The committee said yes, through the informed consent of each affected client after consultation regarding the marital relationship.

Background and rules framework

The opinion applies Rule 1.8(i) (conflicts arising from a marital relationship between opposing lawyers), corresponding to Model Rule 1.8, and draws on ABA Formal Op. 340 for the underlying concerns about confidences and divided loyalty. The committee treated client consent as the cure and rejected an appellate-practice exception.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.8(i) / Model Rule 1.8: a lawyer shall not personally represent a client directly adverse to a person represented by the lawyer's spouse, absent the client's consent after consultation.

Other opinions cited:

• ABA Formal Op. 340 (Sept. 23, 1975): concerns about inadvertent breach of confidence and divided loyalty between married lawyers.
• State Bar of California Op. No. 1984-83.

See also

• SC Bar Ethics Op. 90-45: Judge's Son, PD Office
• SC Bar Ethics Op. 90-35: Councilman-Lawyer Suing County
• SC Bar Ethics Op. 90-27: Co-Counsel as a Necessary Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-28/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-28

Lawyer X is an employee of the State and represents the State at the appellate level in criminal matters. X does not actively participate in the trial of cases handled at the appellate level. As an appellate lawyer, X's discretion and authority is very different from that of the prosecutor at the trial level. X has no discretion regarding the filing of charges, the nature of the charges, the dismissal or reduction of charges, the acceptance or terms of a plea, parole eligibility or the terms and conditions of confinement. X's duty is to present all legal arguments to the appellate courts to persuade those courts to uphold the convictions in cases assigned to X.

Lawyer Y is the spouse of X. Y is a trial lawyer handling criminal matters both at the trial and appellate levels in the same state as X. Since X does not participate at the trial level, X and Y will never appear on opposite sides at that stage. However, X and Y could appear on the opposite sides of the same criminal case at the appellate level.

Questions:
May Y represent the defendant and X represent the state on appeal in the same case?
If an ethical problem is presented by X and Y appearing on opposite sides of the same appeal, can that problem be resolved?

Summary:
Rule 1.8(i) of the S.C. Rules of Professional Conduct permits representation of adverse clients by spouses only when adequate consent has been obtained. The appellate nature of the practice does not remove all potential for conflict between the personal interests of the lawyer and the interests of the client. Therefore, the rule is equally applicable in the circumstances described.

Opinion:
Rule 1.8(i) provides that when Lawyer A is married to Lawyer B, Lawyer A "shall not personally represent a client in a representation directly adverse to a person" who Lawyer A knows is represented by Lawyer B "except upon consent by the client after consultation regarding the relationship." Thus, in the situation presented, lawyers X and Y could not personally represent clients with adverse interests in the same matter without the informed consent of each client. See also State Bar of California Op. No. 1984-83.

The appellate nature of the representation should not affect the result under Rule 1.8. Although an appellate lawyer may have fewer opportunities in which to exercise discretion, "it must also be recognized that the relationship of husband and wife is so close that the possibility of an inadvertent breach of a confidence ... is substantial." ABA Formal Op. 340 (Sept. 23, 1975). There also is concern that "the interest of one of the marriage partners" may create a "financial or personal interest that reasonably might affect the ability of a lawyer to represent his or her client with undivided loyalty and free exercise of professional judgment." Id.

These risks exist at the appellate level as well as at the trial level. There is a risk that an appellate lawyer may subtly alter an argument or fail to pursue a point as aggressively as required in order to avoid embarrassment of or conflict with an opposing spouse. This would be particularly true, for example, if the lawyer for the State were arguing that the spouse, as trial counsel for the defendant below, had erred in failing to protect a point of appeal. In light of these concerns, we find no reason to limit the application of Rule 1.8(i).