Can a lawyer (or the lawyer's firm) handle divorce cases when the lawyer's spouse is the county's only social worker doing the custody and abuse studies in those cases?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-88-7 asked whether an attorney or the attorney's firm may represent a party to a divorce action, as counsel for the petitioner or respondent or as guardian ad litem for the children, when the attorney's spouse is the sole social worker in the county responsible for custody studies and domestic-abuse studies. The committee concluded that the Rules of Professional Conduct, effective January 1, 1988, do not prohibit the representation, citing SCR 20:1.8(i) and noting that several pre-1988 committee opinions were in accord.
On imputed disqualification, the committee pointed out that even as to lawyer spouses there would be no imputed disqualification of other members of the lawyer's firm based solely on the spousal relationship, citing SCR 20:1.8(i) and its Comment and Hazard and Hodes, and reasoned that the rationale for imputed disqualification in the case of a lawyer-nonlawyer spouse would be even more tenuous. The committee added, however, that although the lawyer is not expressly prohibited from such representation, circumstances may exist in particular cases that would require the lawyer to decline or to obtain the client's informed written consent, citing SCR 20:1.4 and SCR 20:1.7(b). Because all clients might reasonably have some concerns about a lawyer's ability to represent them effectively when the lawyer's spouse is involved in the matter in an independent capacity, the committee recommended that lawyers undertaking such representation routinely comply with the SCR 20:1.7(b) disclosure and consent provisions.
Currency note
This opinion was issued in 1988, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The related-persons conflict provision (then SCR 20:1.8(i)) and the concurrent-conflict rule SCR 20:1.7 were later revised. 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 Treat this page as historical context, not current guidance.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 a lawyer take divorce cases when the lawyer's spouse does the county's custody studies?
A: Per the opinion, yes; the committee concluded the rules do not prohibit the representation under SCR 20:1.8(i), and there is no imputed disqualification of the firm based solely on the marriage.
Q: Should the lawyer do anything to protect the client?
A: The committee recommended that lawyers undertaking such representation routinely comply with the disclosure and consent provisions of SCR 20:1.7(b), and noted some cases may require declining or obtaining informed written consent.
Q: Is the firm disqualified because of the spouse?
A: No. The committee concluded there is no imputed disqualification based solely on a spousal relationship, and that the rationale would be even weaker for a lawyer-nonlawyer spouse.
Background and rules framework
The opinion interpreted the then-existing related-persons conflict provision SCR 20:1.8(i) / Model Rule 1.8 together with SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts; disclosure and consent) and SCR 20:1.4 / Model Rule 1.4 (communication), as applied to a family-law lawyer whose spouse holds an independent role in the same cases.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.8(i) / Model Rule 1.8 (related persons; conflicts)
- Wis. SCR 20:1.7(b) / Model Rule 1.7 (conflicts; disclosure and consent)
- Wis. SCR 20:1.4 / Model Rule 1.4 (communication)
Other opinions cited:
- Wisconsin Formal Ops. E-86-1, E-85-2
- Hazard & Hodes, The Law of Lawyering (1987 Supp.) at 171
See also
- WI Ethics Op. E-89-3: Lawyer Spouses on Opposite Sides
- WI Ethics Op. EF-23-02: Guardian ad Litem Conflicts
- WI Ethics Op. E-89-4: Suing a Former Joint Client
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-88-7.pdf
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