Can a lawyer call his or her own spouse as a witness for the lawyer's client, and does the lawyer have to do anything about the relationship?

Plain-English summary

The inquiry asked whether a lawyer violated any ethical obligation by calling his or her own spouse as a witness to testify for the lawyer's client. The committee applied RPC 2.1, which requires a lawyer to exercise independent professional judgment on behalf of a client. It viewed the marital relationship as possibly impairing the lawyer's ability to critically evaluate the testimony and demeanor of the spouse-witness, and it observed that the relationship would doubtless be used to attempt to impeach the witness.

On those facts, the committee was of the opinion that where calling the spouse as a witness might affect the lawyer's independent judgment and possibly have an adverse effect on the client's case, the lawyer would have to comply with RPC 1.7(b) by disclosing the facts to the client and obtaining the client's written consent to the continued representation.

Currency note

This opinion was issued in 1988, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Could a lawyer call a spouse as a witness for the lawyer's client?

A: Under this 1988 opinion, the rules did not flatly prohibit it, but the committee treated the marital relationship as a potential conflict that triggered RPC 1.7(b)'s disclosure-and-consent requirement.

Q: What rule did the committee say governed the relationship?

A: RPC 2.1, requiring independent professional judgment, framed the concern; RPC 1.7(b) supplied the remedy when that judgment might be impaired.

Q: What did the lawyer have to do before proceeding?

A: The committee said the lawyer had to disclose the relevant facts to the client and obtain the client's written consent to continued representation.

Background and rules framework

RPC 2.1, Washington's version of ABA Model Rule 2.1, requires a lawyer to exercise independent professional judgment in representing a client. RPC 1.7(b), Washington's version of Model Rule 1.7, addresses representation that may be materially limited by the lawyer's own interests or relationships and conditions continued representation on disclosure and the client's consent. The committee combined the two: a relationship that might impair independent judgment under RPC 2.1 became a conflict to be cured through RPC 1.7(b) disclosure and written consent.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 2.1 (independent professional judgment)
• ABA Model Rule 1.7 (conflict of interest; personal interest)
• Washington RPC 2.1; RPC 1.7(b)

See also

• WA Ethics Op. 1252: Lawyer Married to Client's Chiropractor
• WA Ethics Op. 1002: City Attorney on Adverse Board

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=328

Original opinion text

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

The Committee considered your inquiry regarding whether it would violate any ethical obligations for a lawyer to call his or her spouse as a witness to testify for the benefit of the lawyer's client in a law suit. The Committee was of the opinion that RPC 2.1 requires a lawyer to exercise independent professional judgment on behalf of a client. The Committee viewed the relationship between a lawyer and spouse as possibly impairing the lawyer's ability to critically evaluate the testimony and demeanor of the spouse/witness. Further, it appeared that the relationship between the lawyer and spouse would doubtless be used to attempt to impeach the testimony of the witness. Therefore, the Committee was of the opinion that where calling a lawyer's spouse as a witness might affect the independent judgment of the lawyer, and possibly have an adverse effect upon the client's case, in that situation the lawyer would have to comply with RPC 1.7(b) regarding disclosure of these facts to the client and have the client's written consent to the continued representation.