Cba Ethics Opinion No. 75: Spousal Conflicts
| Jurisdiction | Colorado,United States |
| Citation | Vol. 08 No. 1987 Pg. 1431 |
| Pages | 1431 |
| Publication year | 1987 |
1987, August, Pg. 1431. CBA Ethics Opinion No. 75: Spousal Conflicts
The Committee has before it a letter from a lawyer married to a deputy district attorney whose present duties consist mainly of prosecuting misdemeanor cases in county court. The lawyer inquires concerning the circumstances in which she can properly represent defendants in felony and misdemeanor cases. She also raises an issue as to the circumstances under which lawyers with whom she is associated in practice can represent defendants in such cases. The inquiry is one of several made over the past few years by prosecutors and criminal defense lawyers whose spouses are affiliated with a group of lawyers representing interests adverse to interests which the inquirer or lawyers connected in practice with the inquirer propose to represent. In addition, members of the Committee have received comments and questions from lawyers married to other lawyers with enough frequency to suggest that ethical questions arising from these marriage relationships continue to arise, despite the issuance of Revised Opinion No. 52 on December 13, 1975. Consequently, the Committee has decided to review the ethical questions presented when spouses, or groups of lawyers with whom the spouses are affiliated in practice, seek to represent adverse parties, with special attention being given to situations where one spouse is a lawyer for a governmental entity.
At the outset, two observations should be made about the scope of this opinion. First, the opinion will discuss only situations where both spouses are involved as lawyers, and not those where one spouse is a judge. The latter situation implicates the Code of Judicial Conduct as well as the Code of Professional Responsibility. The relationship between the two bodies of law raises issues which are beyond this Committee's purview. See generally, Smith v. Beckman, 683 P.2d 1214 (Colo. Ct.App. 1984); Stephens v. Stephens, 292 S.E.2d 689 (Ga. 1982).
Second, the Committee has focused on circumstances where lawyers legally married to one another (or lawyers with whom such lawyers are associated) seek to represent adverse interests in litigation or negotiation. There is. however, no clear line in this area between the marriage relationship and other close relationships among lawyers, such as parent and child, best friends, roommates, and the like. While the inquiry before the Committee involves the marital relationship and it is thus this relationship which the Committee has had in mind in its discussions, the principles discussed herein may be applicable to these other relationships. This opinion, however, does not attempt to consider such relationships in detail.
There is general consensus that the ethical precepts implicated when lawyers married to one another became directly or indirectly involved in antagonistic situations are those found in Canons 4, 5, and 9. Canon 4 admonishes lawyers to preserve the confidences and secrets of their clients. Canon 5. insofar as it is relevant to the marriage relationship, requires a lawyer to refuse employment when the lawyer's own interests may impair his or her independent professional judgment. Canon 9 generally tells lawyers that they should avoid even the appearance of professional impropriety.
The remainder of this opinion will commence with a general discussion of how the disciplinary rules and ethical considerations found in each of the three canons are implicated by the marriage relationship. Thereafter, this discussion will be applied to three situations: (1) the situation where both spouses seek to become directly involved in the contested matter; (2) the situation where neither spouse is directly involved in the matter, but lawyers with whom the spouses are somehow affiliated find themselves on opposing sides; and (3) the situation where only one of the spouses is directly involved against lawyers
DR 4-101 prohibits a lawyer from knowingly revealing a client's confidences or secrets or using a client's confidences or secrets to the disadvantage of the client, for the advantage of the lawyer himself, or for the advantage of a third person. Canon 4's ethical considerations also exhort the lawyer to avoid placing himself or herself in situations which might precipitate inadvertent disclosure of confidences or secrets. For example, absent the consent of the client, the lawyer should not "seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or his confidences or secrets would be revealed to such lawyer." EC 4-2. The lawyer is "to shun indiscreet conversations concerning his clients." Id. He or she should exercise care "to prevent the disclosure of the confidences and secrets" of one client to another client. EC 4-5. Finally, the lawyer is told to refuse employment "that might require such disclosure." Id.
There is a potential for intentional or inadvertent disclosure of clients' confidential information in the marital relationship, not only because of the frequency and extent of contact between the spouses, but also because the relationship itself ordinarily involves the sharing of trust and confidences. With a single exception, however (N.J. Advisory Comm. on Professional Ethics Op. 237 [1972]), the ethics opinions and cases have not regarded Canon 4 as an insuperable obstacle to the spouses' representation of adverse interests. With respect to the problem of intentional disclosure, these authorities simply refuse to assume, "that an attorney is going to divulge professional confidences to a spouse, whether or not that spouse is also an attorney. . . ." Fla. Bar Professional Ethics Comm. Op. 74-49 (1974). Accord, Blumenfeld v. Borenstein, 276 S.E.2d 607, 609 (Ga. 1981); Ore. Bar Ass'n Comm. on Professional Responsibility Op. 281 (1975); ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975). With respect to the possibility of inadvertent disclosure, the authorities admonish the spouse-lawyers to exercise "exceptional" care that confidential information is not inadvertently disclosed by "the seemingly routine discussion of professional experiences between them," D.C. Bar Comm. on Legal Ethics Op. 50 (1978), by "information contained in a telephone message left for the lawyer at home," ABA Comm. on Ethics and Professional Responsibility Formal Op. 340 (1975), or by any other means.
That portion of Canon 5 particularly applicable to lawyer-spouses is found in DR 5-101(A):
Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
(Emphasis supplied.) Depending upon the substantive law of domestic relations and their own personal arrangements, each spouse may be regarded as having some "financial" or "property" interest in money which the other earns by performing professional services for clients. This interest may be especially problematic where one spouse has a contingent-fee arrangement with his or her client. See, ABA Comm. on Ethics and Professional Responsibility Op. 340 (1975).
Even if the spouses have no financial or property interest in one another's income, they still may be regarded as having a "personal" interest in one another's general reputation, success, and welfare. As another ethics committee has put it:
The marriage relationship is such that it is the duty of one to do everything in his or her power for the enhancement of the reputation and well being of the other. Each is concerned not only with demonstrating the personal ability and skill of the...
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