Can a lawyer contact the former spouse of an opposing party for information when the marital privilege may cover their communications?

Plain-English summary

The inquiry concerned contacting the former spouse of an opposing party in pending litigation. The committee concluded that because RCW 5.60.060 makes confidential communications between spouses privileged, and because a subsequent divorce does not affect that privilege, a lawyer's ethical obligations are the same as when the lawyer attempts to contact a physician witness where a similar statutory privilege exists.

To resolve the question, the committee pointed to its earlier Formal Opinion 180, which it found applicable to the marital privilege as well as to the physician-patient privilege.

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 Treat this page as historical context, not current guidance.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: Does the marital privilege still apply after the spouses divorce?

A: The committee said it does. It relied on RCW 5.60.060 making confidential spousal communications privileged, noting that a subsequent divorce does not affect that privilege.

Q: How should a lawyer treat contact with the former spouse of an opposing party?

A: The committee concluded the lawyer's ethical obligations are the same as when attempting to contact a physician witness where a similar statutory privilege exists, and it directed the inquirer to its earlier Formal Opinion 180.

Background and rules framework

The opinion addresses contact with a witness who may hold privileged information, under Washington RPC 4.2 (which corresponds to Model Rule 4.2) together with RCW 5.60.060, the statute establishing the marital communications privilege. The committee treated the marital privilege as analogous to the physician-patient privilege and applied the analysis from its earlier Formal Opinion 180 to the marital context.

Citations and references

Rules of Professional Conduct:

• Washington RPC 4.2, corresponding to Model Rule 4.2.

Statutes:

• RCW 5.60.060 (privilege for confidential communications between spouses, unaffected by subsequent divorce).

Other opinions cited:

• WSBA Formal Opinion 180 (the committee found it applicable to the marital privilege as well as the physician-patient privilege).

See also

• WSBA Ethics Op. 1000: contact with an opposing party represented by counsel
• CA COPRAC Op. 1975-033: defense counsel contacting plaintiff's treating physician
• LACBA Op. 490: ex parte communications with adverse witnesses

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=51

Original opinion text

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

Advisory Opinion: 940
Year Issued: 1985
RPC(s): RPC 4.2; RCW 5.60.060; Formal Opinion 180
Subject: Marital privilege; contacting former spouse of opposing party

On review of your inquiry regarding contacting the former spouse of an opposing party in pending litigation, the Committee was of the opinion that since RCW 5.60.060 makes privileged confidential communications between spouses which is not affected by a subsequent divorce, a lawyer's ethical obligations are the same as when attempting to contact physician witnesses where a similar statutory privilege exists. I enclose a copy of Formal Opinion 180, which the Committee finds to be applicable to the marital privilege as well as the physician/patient privilege.