May lawyers who are related or in a close personal relationship represent opposing parties in the same matter?

Plain-English summary

The committee addressed when personal relationships between opposing attorneys preclude representation. It concluded that attorneys who are members of the same nuclear family (husband and wife, parent and child, siblings) may not undertake representation of opposing interests, and that this is per se impermissible even with disclosure and consent.

For attorneys who are not in the nuclear family but share the same household or have other highly intimate or close relationships (social, personal, political, or business) that might be perceived as an interest affecting independent representation, the committee concluded they may proceed only after making full disclosure and obtaining the client's consent, which must continue throughout the representation. The committee rejected the older "frequency" criterion (former Opinions 71 and 172) in favor of analyzing the nature of the interest created by the relationship. It also concluded these restrictions apply only to the individual attorneys with the apparent conflict and are not extended vicariously to other lawyers in their firms.

Currency note

This opinion was issued in 1985, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent, which changes the former Code's per se bar for nuclear-family lawyers. The Editor's Notes record that Opinion 71 was rescinded and Opinion 172 withdrawn by Council, effective June 16, 1983. Treat this page as historical context, not current guidance.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: Could a husband and wife who are both lawyers represent opposing parties?

A: Under this 1985 opinion, no. The committee treated representation of opposing parties by attorneys in the same nuclear family as per se unethical, even with disclosure and consent.

Q: What about lawyers who live together or are otherwise close but not family?

A: They could proceed, but only after full disclosure and the client's consent, which had to continue throughout the representation.

Q: Did the conflict spread to the related lawyers' firms?

A: No. The committee limited the restriction to the individual attorneys with the apparent conflict and did not extend it vicariously to other lawyers in their firms, assuming full disclosure of any known relationship.

Background and rules framework

The opinion grounded its analysis in the former Code's DR 5-101(A) and EC 5-1 and EC 5-2, which compel a lawyer to avoid influences limiting independent judgment or to disclose them and obtain consent. The committee note maps the question onto current Virginia Rule 1.8(i), corresponding to ABA Model Rule 1.7 (concurrent conflicts) and Model Rule 1.8 (specific conflicts, including related lawyers).

Citations and references

Rules of Professional Conduct:

• DR 5-101(A) (former Code)
• EC 5-1, EC 5-2 (former Code)
• Virginia Rule 1.8(i) (related lawyers) (cited in the committee note)
• ABA Model Rule 1.7 (conflicts of interest)
• ABA Model Rule 1.8 (current client conflicts; related lawyers)

Other opinions cited:

• Former LE Op. 71 (rescinded) and LE Op. 172 (withdrawn), on the prior "frequency" criterion

See also

• VA LEO 619: Opposing Counsel Who Is the Lawyer's Spouse
• VA LEO 665: Part-Time Prosecutor Whose Spouse Is a Law Partner
• VA LEO 556: Assistant County Attorney Whose Spouse Litigates Against the County

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0190.pdf

Original opinion text

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

LEGAL ETHICS OPINION 190

PERSONAL INTERESTS BETWEEN OPPOSING ATTORNEYS WHICH MAY PRECLUDE REPRESENTATION.

Subject: Personal interests between opposing attorneys which may preclude representation.

Conclusion: Attorneys who are members of the same “nuclear” family (husband/wife, parent/child, siblings) may not undertake representation of opposing interests. In situations where the attorneys are not members of the nuclear family but are members of the same household or have other highly intimate or close relationships which might be perceived to be an interest affecting independent representation of the client, the attorneys may proceed to represent their respective clients only after making full disclosure and obtaining the consent of the client.

Discussion: Certain of the past opinions in this area have turned substantially upon the criterion of frequency with which related attorneys may represent opposing interests. See, for example, former Formal Legal Ethics Opinions 71 and 172. Council does not believe that frequency is a reliable and proper standard.

Rather than attempt to anticipate or define the wide range of relationships, familial or otherwise, which may exist between and among attorneys, Council thinks the better approach is to analyze the nature of the “interest” created by the relationship and the impact, real or apparent, that interest has upon the clients and their rights to proper representation.

The ethical under girding for this opinion is found in DR 5-101(A) and EC 5-1 and EC 5-2 of the Virginia Code of Professional Responsibility. [Rules of Court, Part 6:§II: DR 5-101(A), EC 5-1, EC 5-2, Va., (198__).] In addressing the matter of representation by counsel, the Court has adopted considerations which compel an attorney to avoid influences limiting his independent judgment or, in the alternative, to disclose those limiting influences to his potential client. Thus DR 5-101(A) provides in part:

“A Lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client may be affected by his . . . personal interests, except with the consent of his client after full and adequate disclosure under the circumstances.”

The attorney's disclosure of personal interests, of course, must be full and adequate, so that the client may give a truly informed consent.

Council is of the opinion that representation of opposing parties by attorneys who are members of the same nuclear family is per se unethical and cannot be permitted even where there is disclosure by the attorney and consent given by the client.

Beyond the area of the same nuclear family, the Council notes that there are other relationships between attorneys which must be revealed to the client prior to commencing representation. Specifically, the Council is of the opinion that attorneys who share the same household, or who have other highly intimate relationships, whether social, personal, political, business or otherwise, which might be perceived to be an interest adversely affecting the independent representation of the client, must reveal such relationship or interest and obtain the consent of their clients before proceeding with the representation. The disclosure must be full and adequate under the circumstances and the consent of the client must continue throughout the representation.

These restrictions, whether as applied to “nuclear family” or other relationships, shall apply only to the individual attorneys with the apparent conflict. The restrictions shall not be extended vicariously to other lawyers in the affected attorneys' firms, partnerships, associations, or professional corporations, assuming there has been full and adequate disclosure of any known relationship.

Approved by the Supreme Court of Virginia
January 18, 1985
Effective April 1, 1985

Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly adverse to one another if the clients consent.

Editor’s Notes. – Opinion 71 was rescinded and Opinion 172 withdrawn by action of Council, effective June 16, 1983.