Vol. 85, No. 10, October 2012
You talked about personal conflicts of interest between lawyers and their clients in your September 2012 column. What about situations in which an attorney is asked to represent one of his or her family members against another family member: is that a problem?
The September column talked generally about personal conflicts of interest that are prohibited under SCR 20:1.7 (part of the Wisconsin Rules of Professional Conduct). Generally speaking, representation of a family member does not rise to the level of a personal conflict of interest, but in some situations the lawyer may conclude that he or she cannot provide the necessary level of advocacy on behalf of a family member client because the claim is against another family member. The lawyer must always assess a matter to make sure that he or she is unfettered by other loyalties or relationships when advocating for a client.
A recent decision by the Nevada Supreme Court dealt with this issue. In the Nevada case, a motion was made to challenge a circuit court's ruling that a lawyer could not represent his father in the father's divorce proceeding against the lawyer's mother. The Nevada Supreme Court concluded that the concerns raised in the circuit court that the son would potentially be a witness in the divorce and could eventually inherit the parents' estates was too tenuous and further that any "appearance of impropriety" under the Rules of Professional Conduct did not apply. The supreme court also held that any statements made by the mother were not made in a confidential relationship such that a privilege would apply.
Another potential conflict situation arises when lawyers on opposite sides of a case are related to each other (for example, husband and wife are lawyers on opposite sides). The comment to SCR 20:1.7 provides some guidance to lawyers about this type of representation. The comment states:
" When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10."
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee. He can be reached at email@example.com.
While it is clear that no rule specifically prohibits the representation of a family member against another family member, the lawyer certainly must assess whether he or she can provide effective advocacy for the client. In situations in which spouses (or siblings) are on opposite sides of a case, again the rules do not preclude such representation, but they do require clear disclosure to the clients and consent by the client to the representation under those circumstances. Generally, providing representation adverse to a family member lawyer is not recommended, but none of the Rules of Professional Conduct specifically prohibit that type of representation.
Although the rules do not prohibit such representation, lawyers contemplating representing a relative against another relative might ask: how much do I value my family relationships? For real-life insight, see "Representing Family Members and Other Horrible Life Decisions," by Adrian M. Baron, in the December 2009 Wisconsin Lawyer.