Ezel / Ethics Opinions / WISBAR
WISBAR 1989

If one spouse is the district attorney and the other practices criminal defense at a local firm, can their offices be on opposite sides of the same cases?

Short answer: The opinion concluded that under SCR 20:1.8(i) there is no imputed disqualification based solely on a spousal relationship, so the district attorney may prosecute defendants represented by the spouse's firm and the spouse may represent defendants prosecuted by other lawyers in the DA's office. The committee added that, although SCR 20:1.8(i) permits the spouses to appear personally as opposing counsel with appropriate disclosures and consents, that may not be a prudent practice and the question of who could appropriately consent for the state was beyond the committee's jurisdiction.

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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1989
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

Opinion E-89-3 addressed a husband and wife who are both lawyers, where one has been elected district attorney and the other practices with a law firm in the same county that represents criminal defendants. The question was what ethical restrictions apply to the spouses and the firm when the DA's office and the firm are opposing counsel in particular matters. The committee concluded that SCR 20:1.8(i) and its Comment provide clear guidance, and reaffirmed its statement in Formal Opinion E-88-7 (quoting Hazard and Hodes) that even as to lawyer spouses there would be no imputed disqualification.

Applying SCR 20:1.8(i), the committee concluded that the rule permits the district attorney to personally prosecute persons defended by partners or associates of the DA's spouse, and permits the spouse to represent persons prosecuted by other lawyers in the DA's office. As to the spouses personally appearing as opposing counsel against each other, the committee concluded that although SCR 20:1.8(i) permits this with appropriate disclosures and consents, it may not be a prudent practice, and that the primary problem lies with the DA's office and the state, raising the unresolved question of who would appropriately give consent, an issue the committee said was beyond its jurisdiction. The committee closed by reminding lawyer spouses and their offices of their responsibilities under SCR 20:1.6 (confidentiality) and SCR 20:5.1 and 20:5.2 (responsibilities of partners and associates to ensure the rules are observed).

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The related-lawyers conflict provision (then SCR 20:1.8(i)) and the imputation framework 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: Are conflicts imputed across a firm just because two lawyers are married?

A: No. The committee reaffirmed that, even as to lawyer spouses, there is no imputed disqualification based solely on the spousal relationship under SCR 20:1.8(i).

Q: Can a DA prosecute someone defended by the DA's spouse's firm?

A: Per the opinion, yes. The committee read SCR 20:1.8(i) to permit the DA to prosecute persons defended by partners or associates of the spouse, and the spouse to represent persons prosecuted by other lawyers in the DA's office.

Q: Can the two spouses personally appear against each other?

A: The committee concluded that SCR 20:1.8(i) permits it with appropriate disclosures and consents, but said it may not be a prudent practice and that who could appropriately consent for the state was beyond the committee's jurisdiction.

Background and rules framework

The opinion interpreted the then-existing related-lawyers conflict rule SCR 20:1.8(i) / Model Rule 1.8 together with SCR 20:1.6 / Model Rule 1.6 (confidentiality) and SCR 20:5.1 and 20:5.2 / Model Rules 5.1 and 5.2 (responsibilities of supervising and subordinate lawyers), in the context of married lawyers on opposite sides of criminal matters.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.8(i) / Model Rule 1.8 (related lawyers; conflicts)
  • Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
  • Wis. SCR 20:5.1, 20:5.2 / Model Rules 5.1, 5.2 (responsibilities of partners and subordinate lawyers)

Other opinions cited:

  • Wisconsin Formal Op. E-88-7
  • Hazard & Hodes, The Law of Lawyering (1987 Supp.) at 171

See also

Source

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