Does a government lawyer have a conflict of interest when their spouse works for the same agency the lawyer represents?

Plain-English summary

The inquiring lawyer, a Division of Child Support attorney representing DSHS at administrative hearings, asked about possible conflicts of interest arising because his spouse, a non-lawyer, worked for the same agency and might be involved in events connected to his representation. The committee treated the lawyer as appearing as an attorney representing his employer, the agency, as his client.

The committee concluded that the fact the lawyer and his spouse were employed by the same client/employer, and that the spouse might be involved in the events, did not automatically create a conflict under the Rules of Professional Conduct. RPC 1.7 generally prohibits representation that may be materially limited by the lawyer's responsibilities to a third person or by the lawyer's own interests, but allows the lawyer to proceed if the lawyer reasonably believes the representation will not in fact be adversely affected and the client consents in writing after consultation and full disclosure. The marital relationship by itself did not create a responsibility or personal interest tending to limit the representation, and the client was aware of the relationship.

The committee added that, if the lawyer learned of conduct or involvement by his spouse that gave him some responsibility toward her or a self-interest that might materially limit the representation, he had to comply with RPC 1.7(b) to accept or continue. It also addressed RPC 2.1's duty of independent professional judgment, noting the marital relationship could create greater temptation to compromise that judgment but did not automatically create a violation, and that the lawyer should decline a particular case if he thought his representation might in fact be affected. On confidentiality, it said the lawyer would have to exercise the same care all lawyers do when speaking with a spouse about a case, to avoid inadvertent waiver of client privileges.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The conflict-of-interest rule the opinion applies, RPC 1.7, was restructured in that revision. 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 Treat this page as historical context, not current guidance.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: Does a lawyer automatically have a conflict if their spouse works for the agency the lawyer represents?

A: No. The committee said the shared employment, even where the spouse may be involved in the events, does not automatically create a conflict under the Rules of Professional Conduct absent some additional fact implicating a specific provision.

Q: When would the marriage trigger RPC 1.7's conflict procedure?

A: If the lawyer learned of conduct or involvement by the spouse that gave him a responsibility toward her or a self-interest that might materially limit the representation. Then he had to satisfy RPC 1.7(b): a reasonable belief the representation would not be affected, plus the client's written consent after full disclosure.

Q: What did the committee say about independent judgment and confidentiality?

A: It said RPC 2.1's duty of independent judgment could be tested by the marital relationship, but the relationship alone was not a violation; the lawyer should decline a case if he thought his representation might be affected. On confidentiality, he had to use the same care all lawyers do to avoid inadvertently waiving client privileges when speaking with a spouse.

Background and rules framework

The opinion applies Washington RPC 1.7 (conflicts of interest; corresponding to Model Rule 1.7) and RPC 2.1 (independent professional judgment and candid advice; corresponding to Model Rule 2.1). In a footnote it also references RPC 1.7(c) (defining the client when a lawyer represents a discrete government agency within a broader entity) and RPC 1.8(i), the Washington provision that married or closely related attorneys should not represent opposing parties. The committee read RPC 1.7 to require a material-limitation analysis rather than a per se bar.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7 (conflict of interest; general rule), including RPC 1.7(b) and 1.7(c)
• Model Rule 2.1 / Washington RPC 2.1 (independent professional judgment; candid advice)
• Washington RPC 1.8(i) (married or closely related lawyers representing opposing parties), cited in a footnote

See also

• WSBA Ethics Op. 1268: Legislator-Lawyer Suing the State
• WSBA Ethics Op. 1050: Successive Government and Private Work
• WSBA Ethics Op. 1194: Public Defender Board Member Conflicts

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1163

Original opinion text

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

Advisory Opinion: 1923
Year Issued: 2000
RPC(s): RPC 1.7; 2.1
Subject: Conflict of interest arising between spousal employees of DSHS, one is a lawyer the other a non-lawyer

The inquiring lawyer asks about possible conflicts of interest arising between spousal employees of the DSHS. The committee adopted the following in response:

The fact that the attorney and his spouse are employed by the same employer, and the spouse may be involved in the events in connection with which the attorney represents the employer, does not automatically create any conflict of interest under the Rules of Professional Conduct. In the absence of some additional fact which implicates a specific ethical provision, the attorney can represent the employer in a proceeding in which his spouse has personally been involved.

Analysis and Discussion

The inquiry stated that the attorney represents the Division of Child Support at administrative hearings "pro se", in his capacity as an employee of the agency and not as an attorney. The Committee believes this distinction has no effect on the attorney's ethical obligations under the Rules of Professional Conduct, and analyzes the inquiry on the assumption that the attorney is in fact appearing in the administrative proceeding as an attorney, representing his employer.

Conflict of interest issues.

The attorney’s "client" in this case is also his full time employer [Foot Note 1] . RPC 1.7 generally prohibits an attorney from representing a client

"If the representation of that client may be materially limited by the lawyer’s responsibilities . . . to a third person, or by the lawyer’s own interests." If the attorney’s representation might be so limited, he or she can still proceed with the representation if (1) the lawyer reasonably believes the representation will not in fact be adversely affected, and (2) the client consents in writing after consultation and a full disclosure of the material facts.

The fact that the DSC attorney is married to a person who works for the same client/agency does not automatically create some responsibility or personal interest that would tend to limit his representation of the Division. In any event, the "client" is aware of the relationship, and obviously consents to the representation notwithstanding the fact of the marital relationship.

If the attorney should learn of some conduct or involvement by his wife which causes him to have some responsibility toward her, or some self-interest, that may materially limit his representation of the Division, then he must comply with the standards set by RPC 1.7(b) in order to accept or continue with the representation: a reasonable belief that the representation will not in fact be affected, and full disclosure to and consent by the client.

The other RPC provisions dealing with conflicts of interest generally involve (1) relationships with opposing parties, (2) relationships with attorneys for opposing parties [Foot Note 2] , and (2) the attorney’s dealings directly with the client. The husband/wife relationship at issue in the present case does not raise any potential conflicts under those provisions.

Confidentiality

The fact that the attorney is married to another of the client’s employees would not appear to create any heightened risk of the attorney-client privilege being compromised. The attorney would have to exercise the same care all attorneys do, in speaking with their spouse about a case, to avoid the inadvertent waiver of client privileges.

Duty to Provide Independent Advice

RPC 2.1 requires that "in representing a client, a lawyer shall exercise independent professional judgment and render candid advice."

The fact that the attorney is married to one of the client’s employees, in some circumstances, could interfere with his professional judgment and influence the advice he gives the client. The presence of the marital relationship, then, creates a context in which there may be greater temptation for an attorney to violate this rule. The mere fact of the marital relationship, however, does not automatically create a violation. As noted above, if the attorney thinks that his representation may in fact be affected, he should decline the particular case.

Foot Note 1. RPC 1.7(c) notes that when a lawyer represents a discrete government agency "that is part of a broader governmental entity", and the lawyer is not an employee of the agency, his/her client is the "particular governmental agency" and not the broader entity. It does not give a rule when the lawyer is an employee of the agency, but it seems obvious that the agency necessarily is in the role of the client.

Foot Note 2. RPC 1.8(i) provides that married or closely related attorneys should not represent opposing parties in a case.