If a lawyer and their spouse are on opposite sides of a case, one defending and one prosecuting, can both keep working on it?

Plain-English summary

The inquiring lawyer worked for a firm that had a criminal defense contract, and the lawyer's wife was considering employment with the county prosecutor. The committee addressed three situations.

First, in cases where the lawyer personally represented a defendant and the lawyer's wife personally prosecuted that case, both DR 5-101 and RPC 1.8, effective September 1, 1985, require full disclosure to both clients of the fact that the adverse lawyer is a spouse, and that after full disclosure the clients consent to the continued representation.

Second, in cases where another lawyer in the firm represented a defendant and another lawyer in the prosecutor's office represented the State, there is no imputed disqualification of either lawyer, and no need to disclose the spousal relationship.

Third, in cases where either spouse is directly representing a party but the other spouse is not involved in the case, whether the spousal relationship must be disclosed depends upon the facts and circumstances and is governed by DR 5-101 and RPC 1.7.

Currency note

This opinion was issued in 1985, before 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 Treat this page as historical context, not current guidance.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: A lawyer and spouse are personally on opposite sides of the same case. What is required?

A: Both DR 5-101 and RPC 1.8 require full disclosure to both clients that the adverse lawyer is a spouse, and the clients must consent to continued representation after that disclosure.

Q: Is the whole firm or prosecutor's office disqualified because two of their lawyers are married?

A: No. Where another lawyer in the firm handles the defense and another lawyer in the prosecutor's office handles the State's side, the committee found no imputed disqualification and no need to disclose the spousal relationship.

Q: What if only one spouse is on a case and the other is not involved at all?

A: Whether the spousal relationship must be disclosed depends on the facts and circumstances, governed by DR 5-101 and RPC 1.7.

Background and rules framework

The opinion applies RPC 1.7 and RPC 1.8 (the analogs of Model Rules 1.7 and 1.8), along with DR 5-101 of the former Code of Professional Responsibility. The committee distinguished direct opposition between the spouses, which triggers disclosure and consent, from cases handled only by their respective colleagues, which the committee treated as not imputing a disqualification.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (concurrent conflicts of interest)
• Model Rule 1.8 (specific conflict-of-interest rules)
• Washington RPC 1.7 and RPC 1.8 (conflicts of interest)
• DR 5-101 (former Washington Code of Professional Responsibility): conflict between the lawyer's interests and the client

See also

• WSBA Ethics Op. 903: jointly represented spouses who file for dissolution
• WSBA Ethics Op. 897: representing opposing counsel in an unrelated matter

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=18

Original opinion text

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

Advisory Opinion: 906
Year Issued: 1985
RPC(s): DR 5-101; RPC 1.7; 1.8
Subject: Representation of adverse party by lawyer's spouse

The lawyer worked for a firm that had a criminal defense contract and his wife was considering employment for the county prosecutor. In those cases in which you were personally representing a defendant and your wife was personally prosecuting that case, both DR 5-101 and RPC 1.8, effective September 1, 1985, require that you make full disclosure to both clients of the fact that the adverse lawyer is a spouse, and that after full disclosure the clients consent to the continued representation.

In those cases where another lawyer in your firm was representing a defendant, and another lawyer in the prosecutor's office was representing the State, there is no imputed disqualification of either lawyer, and there is no need to disclose the spousal relationship between you and your wife.

In those cases where either you or your wife is directly representing a party, but the other spouse is not involved in the case, the question of whether the spousal relationship must be disclosed depends upon the facts and circumstances and is governed by DR 5-101 and RPC 1.7.