Opinion 1923

The inquiring lawyer asks about possible conflicts of interest arising between spousal employees of the DSHS. The committee adopted the following in response:

The fact that the attorney and his spouse are employed by the same employer, and the spouse may be involved in the events in connection with which the attorney represents the employer, does not automatically create any conflict of interest under the Rules of Professional Conduct. In the absence of some additional fact which implicates a specific ethical provision, the attorney can represent the employer in a proceeding in which his spouse has personally been involved.

Analysis and Discussion

The inquiry stated that the attorney represents the Division of Child Support at administrative hearings "pro se", in his capacity as an employee of the agency and not as an attorney. The Committee believes this distinction has no effect on the attorney's ethical obligations under the Rules of Professional Conduct, and analyzes the inquiry on the assumption that the attorney is in fact appearing in the administrative proceeding as an attorney, representing his employer.

Conflict of interest issues.

The attorney’s "client" in this case is also his full time employer [Foot Note 1] . RPC 1.7 generally prohibits an attorney from representing a client

"If the representation of that client may be materially limited by the lawyer’s responsibilities . . . to a third person, or by the lawyer’s own interests."
If the attorney’s representation might be so limited, he or she can still proceed with the representation if (1) the lawyer reasonably believes the representation will not in fact be adversely affected, and (2) the client consents in writing after consultation and a full disclosure of the material facts.

The fact that the DSC attorney is married to a person who works for the same client/agency does not automatically create some responsibility or personal interest that would tend to limit his representation of the Division. In any event, the "client" is aware of the relationship, and obviously consents to the representation notwithstanding the fact of the marital relationship.

If the attorney should learn of some conduct or involvement by his wife which causes him to have some responsibility toward her, or some self-interest, that may materially limit his representation of the Division, then he must comply with the standards set by RPC 1.7(b) in order to accept or continue with the representation: a reasonable belief that the representation will not in fact be affected, and full disclosure to and consent by the client.

The other RPC provisions dealing with conflicts of interest generally involve (1) relationships with opposing parties, (2) relationships with attorneys for opposing parties [Foot Note 2] , and (2) the attorney’s dealings directly with the client. The husband/wife relationship at issue in the present case does not raise any potential conflicts under those provisions.

Confidentiality

The fact that the attorney is married to another of the client’s employees would not appear to create any heightened risk of the attorney-client privilege being compromised. The attorney would have to exercise the same care all attorneys do, in speaking with their spouse about a case, to avoid the inadvertent waiver of client privileges.

Duty to Provide Independent Advice

RPC 2.1 requires that "in representing a client, a lawyer shall exercise independent professional judgment and render candid advice."

The fact that the attorney is married to one of the client’s employees, in some circumstances, could interfere with his professional judgment and influence the advice he gives the client. The presence of the marital relationship, then, creates a context in which there may be greater temptation for an attorney to violate this rule. The mere fact of the marital relationship, however, does not automatically create a violation. As noted above, if the attorney thinks that his representation may in fact be affected, he should decline the particular case.

Foot Note 1. RPC 1.7(c) notes that when a lawyer represents a discrete government agency "that is part of a broader governmental entity", and the lawyer is not an employee of the agency, his/her client is the "particular governmental agency" and not the broader entity. It does not give a rule when the lawyer is an employee of the agency, but it seems obvious that the agency necessarily is in the role of the client.

Foot Note 2. RPC 1.8(i) provides that married or closely related attorneys should not represent opposing parties in a case.