Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Personal Relationships and Professional Responsibilities 

Lawyer Chris represents Client C in an action against Party P for breach of contract.  Party P has hired the firm of X & Y, where attorney Sam is a partner.  Chris and Sam happen to be married.  Is there a conflict of interest?  If so, is there a remedy?  Or do we need more information to resolve the question?

California Rule of Professional Conduct 3-310 covers general conflicts of interests, and rule 3-320 provides guidance on the potential conflict of interest where a lawyer is married to a lawyer on the other side. 

Rule 3-310 (B) states that a lawyer “shall not accept or continue representation of a client without providing written disclosure to the client where … [t]he member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter.”  (Calif. Rule of Prof. Conduct, rule 3-310).  [Rule 3-310 also restricts a lawyer from representing multiple clients in the same matter (paragraph C), and prevents a lawyer from accepting employment adverse to the interests of current or former clients where the lawyer has material, confidential information from a current or former client (paragraph E).]  Certainly the marriage of Sam and Chris constitutes a personal relationship, but Sam and Chris are lawyers, not parties or witnesses.  Moreover, the commentary to Rule 3-310 states that paragraph B is “not intended to apply to the relationship of a member to another party's lawyer.”

Rule 3-320 addresses the situation where the potential conflict lies not with a party or a witness, but instead with the other party’s lawyer.  “A member shall not represent a client in a matter in which another party's lawyer is a spouse, parent, child, or sibling of the member, lives with the member, is a client of the member, or has an intimate personal relationship with the member, unless the member informs the client in writing of the relationship.”  (Calif. Rules Prof. Conduct, rule 3-320).  Under a plain reading, it appears the rule requires written disclosure to Party P and Client C before Sam and Chris can continue representation. 

The discussion of Rule 3-320 clarifies that the conflict arises only where both lawyers are directly involved in the representation.   “Rule 3-320 is not intended to apply to circumstances in which a member fails to advise the client of a relationship with another lawyer who is merely a partner or associate in the same law firm as the adverse party's counsel, and who has no direct involvement in the matter.”  So the resolution of our hypothetical requires more information.  If Sam is directly involved in the representation of Party P, then Rule 3-320 applies.  On the other hand, if Sam has no direct involvement in the representation, then Rule 3-320 does not apply.

Several practice pointers evolve from our example.  First, the safest path involves written disclosure of the lawyers’ relationship to the clients. Second, conflict checks should include personal relationships with other lawyers. Although our example involved married lawyers, Rule 3-320 applies also to familial relationships and to “intimate personal relationships.”  (Calif. Rule of Prof. Conduct, rule 3-320). A lawyer in a personal relationship with another lawyer must understand the potential impact of the relationship on clients and colleagues. Thus even if the lawyer is not directly involved in the representation, the lawyer may need to inform colleagues in the firm of the relationship to avoid the potential for direct involvement in the representation or the transfer of confidential client information.

– Timothy Casey

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**