In the olden days, lawyers and judges were men, couples lived together only after a wedding, divorce was less common, and marriage equality was not on the radar. So there was little occasion to wonder about ethical conflicts of interest that might be raised by lawyers or judges being married to each other, cohabiting with each other and divorcing each other.
But that was then. Now, the bar includes lawyers and judges of all genders. Lawyers and judges of all genders and sexual orientations are in intimate relationships with each other, with or without being married. And divorce is an unfortunate fact of life for many dual-legal-career couples.
All in the family?
What impact do these lawyer couplings and uncouplings have on ethical conflicts of interest? Ethics opinions and cases have considered the issue; most have found no per se conflict of interest under several sets of circumstances.
In the latest opinion, the Florida Supreme Court’s Judicial Ethics Advisory Committee said on January 15 that a judge was not disqualified from sitting in cases where a party was represented by the judge’s former spouse’s former law partner. The judge received no alimony or support from the judge’s former lawyer-spouse, the committee noted, and it opined that “no reasonable person would question the judge’s impartiality” under the circumstances. The relationships were not relevant to the question of disqualification, the committee said, and need not even be disclosed.
Would the result have been different if, instead of the tenuous connection presented to the ethics committee, the facts involved a contentious divorce, and a lawyer who drew as a judge on a case his or her former spouse? Perhaps.
Some opinions from ABA and from other states
Thirty-five years ago, the ABA Ethics Committee, in Formal Opinion 340 (1975) (subscription required), noted that women were entering the profession in increasing numbers, and that some firms were apparently reluctant to hire a lawyer married to another lawyer, for fear of some disqualifying conflict.
The committee said that no inherent conflict was raised by lawyer spouses, even when they might represent different parties opposed each other in the same matter. Rather, the existence of some ethical problem has to be determined each individual case. “We cannot assume that a lawyer who is married to another lawyer necessarily will violate any particular disciplinary rule, such as those that protect a client’s confidences … and that forbid representation of differing interests.” The committee cautioned against pillow-talk, though — the possibility of an inadvertent breach of confidentiality might be “substantial,” given the closeness of the relationship.
Following the ABA’s opinion, several states issued similar opinions, including Kentucky (lawyer can represent client where spouse works in same firm as opposing counsel); Vermont (no per se rule against wife representing criminal defendants where members of husband’s firm represent criminal defendants with conflicting interests); and New York (spouse of assistant district attorney can work in the same county as an assistant public defender, though husband and wife should not appear on opposite sides of the same matter). See also Montana (lawyer spouses may not directly represent opposing parties without client consent).
In DCH Health Services Corp. v. Waite, the California state court of appeals held in 2002 that a lawyer should not be disqualified merely because the lawyer’s wife, a judge, had formerly served as a corporate director of the opposing party. “We reject the suggestion that [ethics] issues should be resolved solely by reference to the marriage relationship,” the court wrote, and asked “is the likelihood of disclosure any less when two lawyers are sharing a household without being married or when they are involved in a dating relationship?”
Law license; marriage license
If you have a conflict issue involving lawyer-family relationships, you should carefully research the opinions and cases from your jurisdiction, to make sure that you stay on the right side of the rules. But we can be glad, at least in some ways, that the olden days are over.