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Ethics Opinion

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R-3

July 21, 1989

SYLLABUS

  1. Lawyer spouses may represent clients whose positions are adverse only if the clients are informed of the relationship and consent to the representation.

    A lawyer may represent a client where the adverse party is represented by the lawyer's spouse's law firm, but if the relationship between the spouses and all attendant facts result in any of the lawyers having a personal interest in the outcome of the litigation then that interest must be disclosed to the clients and the clients must consent to the representation.

    Law firms of lawyer spouses may represent clients with adverse interests, and need disclose the existence of the marital relationship between lawyers in the two firms only if the facts indicate that that relationship has given the lawyers handling the case a personal interest in the outcome of the litigation.

  2. A judge is disqualified from presiding over a case where his or her spouse appears as an advocate for either party.

    A judge is disqualified from presiding over a case where the law firm of the judge's spouse appears as an advocate for either party, unless the parties request the judge to continue presiding in the case after disclosure of the relationship and consultation.

  3. Where lawyers are cohabiting, or a lawyer and a judge are cohabiting, the rules regarding married lawyers should be adhered to because the cohabitation relationship is akin in terms of intimacy, confidentiality, and shared interest to the marital relationship.

  4. Where lawyers are dating and representing adverse parties, or a lawyer is dating the judge hearing the matter, the lawyers must disclose the relationship to their clients if the relationship is sufficiently close that the clients would possibly consider its existence to be prejudicial to the impartial administration of justice.

    References: MRPC 1.7 and 1.8(i); MCJC 2A, 2C; MCR 2.003(B)(5); CI-605. CI-65, CI-340, CI-607, and CI-803 are superseded. CI-1130 is superseded to the extent inconsistent with this opinion.

TEXT

The Committee has been asked to provide guidance in the area of potential conflicts involving lawyer spouses. The increase in the number of married couples where both spouses are practicing law can give rise to numerous situations in which the potential for conflict of interest may exist or may be thought to exist. For analytical purposes, it is useful to consider three possible situations which are likely to arise. These three are as follows:

    (1) Spouse A v. Spouse B—The spouses are representing clients whose interests are adverse.

    (2) Spouse A v. Firm of Spouse B—One spouse is directly representing a client whose adversary is represented not by the other spouse but by the firm of the other spouse.

    (3) Firm of Spouse A v. Firm of Spouse B—Neither of the spouses is directly involved but their respective firms are representing clients in an adversarial posture.

With respect to situation (1), that of the spouses directly representing adversaries, MRPC 1.8(i) states:

    "A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."

Thus, the spouses are not automatically disqualified from this representation but they must disclose the relationship to their clients and obtain their consent to the representation. This Rule is a change from the Code of Professional Responsibility which was interpreted in a number of opinions to preclude altogether such adverse representation by spouses.

Rule 1.8(i) is not applicable to the situations set forth in Examples (2) and (3), above. The comment to Rule 1.8 provides:

    "The disqualification stated in paragraph (i) is personal and is not imputed to members of firms with whom the lawyers are associated."

Thus, Rule 1.8(i) does not mandate that the clients be informed of the relationship and that their consent be sought where the firm of one spouse opposes either the other spouse or the firm of the other spouse. However, such disclosure may be required by the general rule on conflicts of interest, MRPC 1.7. This rule provides, in relevant part, as follows:

    "(b) A lawyer shall not represent a client if the representation of that client may be materially limited by . . . the lawyer's own interest, unless:

      "(1) the lawyer reasonably believes the representation will not be adversely affected; and

      "(2) the client consents after consultation . . . ."

One can easily posit a situation where a lawyer's interest would be affected by litigation with a spouse's firm. For example, consider the situation where Spouse A is a partner or shareholder in a firm doing personal injury law, where a partner of Spouse A brings a contingent fee personal injury case, and where that case is defended by Spouse B. Because Spouse A is a partner or shareholder, Spouse A is entitled in salary or bonus to a percentage of the firm's income, and thus to a percentage of the recovery in that action. Assuming, as is most often the case in marital relationships, that A and B share income, or even indirectly benefit from each other's income, Spouse B will have a financial stake, a personal interest, in the outcome of that case. The conflict may prevent Spouse B from "reasonably believing the representation will not be adversely affected" under MRPC 1.7(b)(1), but if not, that interest must be disclosed by Spouse B to the client, and the client must consent to the representation.

If, in the above case, Spouse A is not a partner the situation becomes less clear. What if Spouse A is an associate whose prospects for advancement are dependent, at least in part, on the person in the firm who is litigating against Spouse B? Many similar questions could be asked and the answers are not clear, but lawyers involved in such situations must carefully examine all of the facts in order to determine whether they do have a personal interest in the outcome of the litigation. The sizes of the firms involved, their supervisory structures and the positions of the lawyer spouses in those structures, the compensation arrangements, the nature of the case involved, whether the case is a contingency fee case, and whether the firms have continuing relationships with the clients, are all factors which, along with others, must be considered by the lawyer spouses and their firms in deciding whether any lawyer's personal interests are implicated.

Where neither Spouse A nor Spouse B are personally involved in the representation, but their respective firms are representing adverse parties, the likelihood of either of the spouses or their firms having a personal interest in the outcome of the case appears to be less. However, all of the relevant facts should be examined carefully to determine whether either of the spouses or the lawyers in their firms who are involved in handling the litigation have a personal interest in the outcome of the litigation which could interfere with the lawyer's representation of the client.

Again, the lawyer first determines whether a disinterested lawyer would reasonably believe the representation would not be adversely affected, and, if so, seeks client consent after disclosure.

Similar questions can arise where one or both spouses are employed by a governmental entity rather than by a private firm, although analysis should be the same. CI-1130, decided under the Code, dealt in part with the question of whether Spouse B could represent criminal defendants who were being prosecuted by lawyers who were supervised by Spouse A in the prosecutor's office. The opinion concluded that, because of the supervisory structure in the office, Spouse A was effectively acting in an adverse capacity to Spouse B, a situation which was held to be prohibited by the Code. Such a situation would not, as noted, be absolutely prohibited by the MRPC, however disclosure to the clients and consent would be necessary. The continued significance of CI-1130 under the MRPC is its recognition of the importance of the supervisory structure in the prosecutor's office, which may or may not be distinguished from that of a private firm.

To the extent that CI-1130 is inconsistent with this opinion, it is superseded. Opinions CI-65, CI-340, and CI-803 are all superseded.

Questions have been raised in the past and will undoubtedly arise again about the possibility of conflicts of interest where lawyers who are dating or cohabiting are representing adverse parties, or where their firms are involved in adverse representation. The Committee believes that in a cohabitant relationship, the lawyers are likely to have that degree of intimacy, confidentiality, and shared interest which creates the potential for conflict of interest in connection with a martial relationship. Therefore, the lawyers in a cohabitant relationship should disclose that relationship if they are representing adverse parties and should seek client consent to continued representation, just as married lawyers must do in compliance with MRPC 1.8(i). If all of the facts discussed above suggest that a marital relationship should be disclosed to clients where the spouses' firms are involved in adverse representation, so also should a cohabitant relationship be disclosed. If the factors suggest the possibility that the lawyer's personal interests could be affected by the representation, MRPC 1.7(b) again is applicable. CI-607, which held that cohabitants were precluded from representing adverse parties, is superseded.

The degree of confidentiality and shared interest in a dating relationship can vary greatly. Lawyers involved in a dating relationship who are representing adverse parties should examine the situation carefully and should disclose the relationship to the clients if their relationship is sufficiently close that it could raise questions in the minds of the clients as to whether their interests would be zealously served. Lawyers should err on the side of caution and should disclose such relationships, or decline representation under MRPC 1.7(b), if they think there is any possibility that the clients would consider the existence of the lawyers' dating relationship to be detrimental to the lawyer-client relationship.

In sum, the existence of a martial relationship between lawyers representing adverse interests in a lawsuit does not automatically disqualify them from that representation, but the relationship must be disclosed to the clients and they must consent to the representation. This requirement for disclosure and consent is not mandatory where a lawyer is representing a client and the law firm of the lawyer's spouse is representing the adverse client, nor is it mandatory where the respective law firms of lawyer spouses are representing adverse clients. However, where the existence of the marital relationship and all of the facts regarding the nature of the firms, the clients, and the case, create in the lawyer spouses or in the lawyers litigating the case a personal interest in the outcome of the litigation, the relationship and the nature of that personal interest must be disclosed to the clients pursuant to MRPC 1.8(i) and representation may be improper under MRPC 1.7(b). These same rules would be applicable to lawyers who are not married but are cohabiting. Where lawyers are dating and representing adverse clients at the same time, they should disclose the dating relationship if it is sufficiently close that its existence could cause the clients to consider it detrimental to the lawyer-client relationship.

The Committee has also been asked whether the activities allowed for a judge and the judge's spouse/advocate are parallel to those allowed for other lawyer spouses. MCR 2.003, regarding disqualification of a judge, provides, in relevant part, that:

    "(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge

      ". . .

      "(2) is personally biased or prejudiced for or against a party or attorney

      ". . .

      "(5) is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney or within the sixth degree (civil law) to a party; . . . ."

Thus, a judge must disqualify himself or herself if the judge's spouse were representing a party in a case. In CI-605, this Committee addressed the question of whether a judge could preside in a case where a party was represented by a firm which employed the judge's spouse. In that opinion we stated:

    ". . . A judge is not automatically disqualified from hearing a case which is conducted by an unrelated attorney when the judge's spouse is the member of the same law office as the attorney acting in the proceeding. In such a case, the judge must disclose the relationship to all the parties to the proceeding and disqualify himself unless the parties formally request thejudge to continue . . . ."

This is a more exacting standard than was suggested above for lawyer spouses, where disclosure would be mandatory only if all of the circumstances indicated that one of the spouses could have a personal interest in the outcome of the matter. Of course, the role of a judge differs from that of an advocate and this more exacting standard is clearly appropriate.

MCJC 2A and 2C provide:

    "(A) Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."

    "(C) A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not use the prestige of his office to advance the business interests of himself or others. He should not appear as a witness in a court proceeding unless subpoenaed."

Because of the importance of avoiding even the appearance of impropriety, a judge should always disclose to parties in a case before him or her if he or she is dating a lawyer for either of the parties. If a party objects to the judge's continued service on the case, the judge should disqualify himself or herself.

In sum, the rules applicable to a judge are more stringent than those applicable to lawyers. A judge cannot hear a case where the lawyer for one of the parties is the judge's spouse and should similarly disqualify if the advocate is cohabiting with or dating the judge. A judge must disclose to the parties if the spouse is a member of or employed by a firm representing a party in a case. A judge must disclose to parties if the judge is living with or dating a lawyer for either of the parties in the matter.

 
     

 

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