If two lawyers are married and their firms represent opposing parties in the same matter, is there a conflict, can it be cured by consent, and is it imputed to everyone at each firm?
Texas Ethics Opinion 666: Married Lawyers at Opposing Firms on the Same Matter
Short answer: Per the Committee, a marriage between lawyers at opposing firms does not automatically create a conflict, but it does under Rule 1.06(b)(2) when the representation reasonably appears to be adversely limited by the spousal relationship; when it does, Rule 1.06(f) imputes the conflict firm-wide and the representation may continue only with informed client consent under Rule 1.06(c).
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary 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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion considers Spouse A at Alpha Firm and Spouse B at Beta Firm, where the two firms represent opposing parties in the same civil matter and each spouse knows it. It addresses whether a conflict exists and whether it can be cured. Because the Texas rules do not specifically address spousal conflicts, the Committee analyzes the situation under Rule 1.06(b)(2), which covers conflicts arising from a lawyer's own interests.
The Committee holds there is no automatic conflict simply because a spouse's firm is adverse to the other spouse's firm; a conflict exists if the representation "reasonably appears to be or become adversely limited" by the spousal relationship, usually a question of fact. A Rule 1.06(b)(2) conflict will usually exist when both spouses are personally involved in the opposing representations, or when either spouse has a material personal interest in the outcome. Otherwise the analysis weighs all the circumstances, including the nature of the matter, whether and how each spouse is involved, any financial effect on either spouse, the spouses' positions in their firms, and whether the handling lawyers work closely with the lawyer-spouse in the same firm. If no adverse limitation reasonably appears, the lawyer may proceed (and disclosing the spousal relationship, while not required, may be wise). If an adverse limitation does reasonably appear, the lawyer must decline or withdraw, or seek to proceed with client consent under Rule 1.06(c).
The opinion explains the two-step Rule 1.06(c) consent process: the lawyer must first reasonably believe the representation will not be materially affected, and a disinterested lawyer must not conclude the client should decline; only then may the lawyer seek consent after full disclosure of the existence, nature, implications, and possible adverse consequences (written consent is prudent though not required). Critically, the Committee notes Texas, unlike jurisdictions following ABA Model Rule 1.10(a)(1), has no exception removing personal-interest conflicts from imputation; Rule 1.06(f) imputes the spousal conflict firm-wide, so no other lawyer in the firm may take the representation without client consent, even if that yields harsh results. The analysis applies independently to each spouse's firm, and one client's consent is independent of the other's. Finally, citing Haley v. Boles, the opinion notes one situation, an indigent criminal defendant with court-appointed counsel whose partner is married to the prosecutor, where withdrawal is required regardless of consent.
In practice
Under this opinion, and under the Texas rules as they stood at the time of the opinion, lawyers married to each other at opposing firms on the same matter must analyze under Rule 1.06(b)(2) whether the representation reasonably appears adversely limited by the marriage, considering the listed factors and treating it as usually conflicted when both spouses are involved or either has a material stake. The opinion holds that where a conflict exists, Rule 1.06(f) imputes it to every lawyer in the firm and the representation may proceed only on the two-step Rule 1.06(c) consent (reasonable belief plus informed consent after full disclosure), with each firm and client analyzed independently, and that Haley v. Boles requires withdrawal regardless of consent for an indigent, court-appointed criminal defense.
Common questions
Q: My spouse is a lawyer at the firm on the other side of my case. Is that automatically a conflict?
A: Per Opinion 666, no; a conflict exists only if the representation reasonably appears to be adversely limited by the marriage under Rule 1.06(b)(2), usually a fact question, though it usually exists when both spouses are involved or either has a material stake.
Q: If there is a conflict, can other lawyers at my firm just handle the matter instead?
A: No. The opinion holds Rule 1.06(f) imputes the personal-interest conflict firm-wide (Texas has no Model Rule 1.10(a)(1) exception), so no other lawyer in the firm may take it without the client's informed consent under Rule 1.06(c).
Q: How is the conflict cured?
A: The opinion describes a two-step Rule 1.06(c) process: the lawyer must first reasonably believe the representation will not be materially affected, then obtain the client's consent after full disclosure of the relationship's existence, nature, implications, and possible adverse consequences.
Q: Is consent ever insufficient?
A: Yes. Citing Haley v. Boles, the opinion notes that for an indigent criminal defendant represented by court-appointed counsel whose partner is married to the district attorney, constitutional concerns require withdrawal even with consent.
Background and rules framework
The opinion interprets Texas Disciplinary Rule 1.06 (conflicts of interest), specifically 1.06(a) (no representing opposing parties to the same litigation), 1.06(b)(2) (representation adversely limited by the lawyer's own interests), 1.06(c) (consent), and 1.06(f) (imputation). These correspond to ABA Model Rule 1.7, and the opinion contrasts Texas's imputation rule with ABA Model Rule 1.10(a)(1)'s exception for personal-interest conflicts.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (conflicts of interest; current clients)
- MR 1.10 (imputation of conflicts; personal-interest exception)
- Texas Disciplinary Rules 1.06(a), 1.06(b)(2), 1.06(c), 1.06(f)
Cases:
- Haley v. Boles, 824 S.W.2d 796 (Tex. App.-Tyler 1992, orig. proceeding, no writ)
Other opinions cited:
- Texas Professional Ethics Committee Opinion 539 (February 2002): spousal-relationship conflicts
See also
- TX Ethics Op. 667: Prosecutor Whose Spouse Is the Defendant's Bail Bondsman
- TX Ethics Op. 649: Government Lawyer's Personal-Interest Furlough Conflict
- TX Ethics Op. 659: Representing an Insured, Then the Insurer, on the Same Incident
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-666/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_666.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
Does a conflict of interest exist where attorneys, who are married to each other, either represent, or are members of firms who represent, opposing parties to the same civil matter? If so, can the conflict be cured?
STATEMENT OF FACTS
Alpha Firm and Beta Firm have been retained by opposing parties in a civil matter, such as a transaction or a lawsuit. Spouse A is employed by Alpha Firm and Spouse B is employed by Beta Firm. Each spouse knows that his or her respective firm represents a client in a matter directly adverse to a client of the other spouse's firm. In one scenario, Spouse A is not directly involved with the matter, but Spouse B is directly involved. In another scenario, neither Spouse A nor Spouse B is directly involved with the matter.
DISCUSSION
The Texas Disciplinary Rules of Professional Conduct do not specifically address conflicts of interest based on spousal relationships. Instead, the issue is governed by Rule 1.06(b)(2), which addresses conflicts of interest arising from a lawyer's personal interests. Rule 1.06 provides, in part:
(a) A lawyer shall not represent opposing parties to the same litigation.
(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:
(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or
(2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's or law firm's own interests.
(c) A lawyer may represent a client in the circumstances described in (b) if:
(1) the lawyer reasonably believes the representation of each client will not be materially affected; and
(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.
A lawyer does not necessarily or automatically have a conflict of interest merely because the lawyer's law firm represents a party adverse to a party represented by the law firm of the lawyer's spouse. Such a lawyer will have a conflict of interest, however, if the lawyer's representation "reasonably appears to be or become adversely limited" by the lawyer's relationship with his or her spouse. In most cases this will be a question of fact.
A Rule 1.06(b)(2) conflict of interest will usually exist when both spouses are personally involved in representing opposing parties in the same matter, or when either spouse, for whatever reason, has a material personal interest in the outcome of the matter. In other circumstances, resolution of the issue requires consideration of all the circumstances, including, without limitation, (1) the nature of the matter and the issues involved; (2) whether either spouse will be directly involved in the representation, and if so the nature and extent of such involvement; (3) whether and to what extent the outcome of the representation may have a financial effect on either spouse; (4) the positions of the spouses within their firms; and (5) whether the lawyers handling the representation have a close working relationship with the lawyer-spouse in the same firm. It should be noted that, under the facts considered in this opinion, each spouse knows that his or her firm is representing a client in a matter directly adverse to a client of the other spouse's firm.
If, under the circumstances, it reasonably appears that the lawyer's representation will not be adversely limited by the lawyer's interests arising from the marital relationship, the lawyer is free to undertake or continue with the representation. Even in that event, it may be wise (although not required) for the lawyer to disclose the spousal relationship to the client, notwithstanding the absence of a conflict of interest.
If, under the circumstances, it reasonably appears that the lawyer's representation will be adversely limited by the lawyer's interests arising from the marital relationship, the lawyer must either (1) decline or seek to withdraw from the representation, or, if appropriate, (2) seek to undertake or continue the representation by obtaining client consent in accordance with Rule 1.06(c).
Obtaining consent under Rule 1.06(c) is a two-step process. First, before seeking client consent a lawyer must reasonably believe that the representation of the client will not be materially affected by the lawyer's relationship with the spouse. Rule 1.06(c)(1). A "reasonable belief," when used in relation to conduct of a lawyer, denotes both "that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable." Terminology Section of the Texas Disciplinary Rules of Professional Conduct. "[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client's consent." Comment 7 to Rule 1.06.
If the lawyer reasonably believes that, under the circumstances, the representation will not be materially affected by the lawyer's relationship with the spouse, the lawyer may then seek the client's consent. In order to obtain effective client consent, the lawyer must first fully disclose the existence, nature, implications, and possible adverse consequences arising from the marital relationship and the advantages involved, if any. Although the Rules do not require written consent, the lawyer would be prudent to obtain written consent. If the client provides informed consent, the lawyer may accept or continue with the representation. If the client does not consent, the lawyer and the lawyer's firm must decline the representation or withdraw.
In many United States jurisdictions, a conflict arising from a lawyer's marriage to another lawyer at an opposing law firm is not necessarily imputed to all other lawyers in the firm. In particular, many jurisdictions have adopted a version of ABA MODEL RULES OF PROF'L CONDUCT R. 1.10(a)(1), under which "personal interest" conflicts of one lawyer are not imputed to other lawyers in the firm so long as they do not "present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm."
Although there is significant merit to the ABA's approach regarding imputation of "personal interest" conflicts, no such exception exists under the Texas Disciplinary Rules of Professional Conduct. Rule 1.06(f) provides:
"If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct."
Rule 1.06(f) requires imputation of personal interest conflicts under Rule 1.06(b)(2). Consequently, if a lawyer would be prohibited from undertaking representation on a matter because the representation "reasonably appears to be or become adversely limited" by the lawyer's relationship with the lawyer's spouse, no other lawyer in the firm may undertake the representation without obtaining the client's informed consent under Rule 1.06(c). The Committee appreciates that the firm-wide imputation of spousal conflicts may in some cases lead to harsh results but those results are dictated by the current provisions of Rule 1.06(f).
The foregoing analysis applies independently to each lawyer spouse and his or her firm. A determination of whether a conflict exists by one spouse and his or her firm will not necessarily call for the same determination by the other spouse and his or her firm. Similarly, if a conflict exists and consent is appropriate, one client may give informed consent under Rule 1.06(c) independently of whether the other client does so.
Finally, the Committee notes that in one situation a lawyer's marriage to opposing counsel may require withdrawal regardless of client consent under Rule 1.06(c). In Haley v. Boles, 824 S.W.2d 796 (Tex. App.-Tyler 1992, orig. proceeding, no writ), the court held that the trial court abused its discretion in denying a motion to withdraw filed by counsel appointed to represent an indigent criminal defendant when the appointed counsel's law partner was married to the district attorney. The court observed that constitutional concerns would require withdrawal even if the indigent defendant had consented to the conflict under Rule 1.06(c). Id. The court expressly limited its holding to situations involving indigent criminal defendants represented by court-appointed attorneys because, as the court explained, the indigent defendant does not have the full ability to evaluate and consent to the representation. Id.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct, a marriage between lawyers affiliated with opposing firms engaged on the same adverse matter may give rise to a conflict of interest. Whether a conflict exists will depend on the circumstances. If the circumstances are such that it reasonably appears a lawyer's spousal relationship will adversely limit the lawyer's representation, neither the lawyer nor any other lawyer in his or her law firm may undertake or continue the representation without obtaining the client's informed consent under Rule 1.06(c).
To obtain effective consent under Rule 1.06(c), the lawyer must first reasonably believe the representation can be undertaken or continued with no material adverse effects on the client. Whether such a belief is reasonable depends on the circumstances. Assuming the lawyer can form such a reasonable belief, the lawyer may then seek the client's consent by making full disclosure of the existence, nature, implications, and possible adverse consequences of the representation under the circumstances and the advantages involved, if any. The lawyer may undertake or continue the representation only when the client has provided such informed consent.
Tex. Comm. On Professional Ethics, Op. 666 (2016)