Why it shouldn't be all in the family: conflicts imputed to family members

By Curtis A. Johnson

BridgeTower Media Newswires

My wife and I are both litigators, and when we meet new people, our conversation typically involves the same questions, in the same order:

Q: (directed at spouse #1): What do you do for a living?

A: I'm a lawyer.

Q: What type of law do you practice?

A: Commercial litigation, I represent companies when they sue each other.

Q: (directed at spouse #2): And, what do you do?

A: I'm also a lawyer, and I also focus on commercial litigation.

Q: (directed at both): Wow, do you ever find yourselves on opposite sides of the same case?

Depending on our audience, we usually answer no and leave it at that. But if people seem interested and we do not think it will put them to sleep, we explain why: It would be a conflict. A waivable conflict, but a conflict nonetheless. Rule 1.10(h) provides:

A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent in any matter a client whose interests differ from those of another party to the matter who the lawyer knows is represented by the other lawyer unless the client consents to the representation after full disclosure and the lawyer concludes that the lawyer can adequately represent the interests of the client.

Even before we were married, my wife and I decided that we did not want to litigate against each other. But, other than the possible detriment to our relationship, I never really thought about our rationale.

What is it about a marital or other close family relationship that gives rise to a conflict and requires us to get client consent? The first and most obvious answer is the appearance of impropriety. Clients may not trust that we will maintain confidentiality or that our duty of loyalty to them will outweigh our loyalty to those whom we love, with whom we share a home, or with whom we grew up. Rule 1.10(h) recognizes that while strict loyalty and confidentiality are required - and that attorneys do their best to adhere to those rules - clients may not trust lawyers' ability to strictly maintain loyalty and confidentiality.

Although I have not been faced with the situation where my wife and I are on opposite sides of the same case, I firmly believe that divided loyalty is not a material risk for me because, like most lawyers, I am inherently competitive or I was made that way in law school, where I faced grading on strict curves, Law Review write-on competitions and moot court. And, nothing brings out my competitive nature like going up against someone I know and respect. I want to show that person my best. As a result, my clients get my best. While I have resolved to steer clear of litigating against my wife, the risk of divided loyalty is not my primary concern.

I am more concerned about the practical and tactical considerations of facing off against a family member in court or across a conference room table, including risks of inadvertent disclosure and of an opponent/family member having knowledge about my personal life that could be used to the benefit of his or her client. First, close family members are often privy to the details of our personal lives and schedules in ways that ordinary opponents are not. For example, your mother might know that you are taking your family on vacation, and she may be able to use that information to your client's disadvantage by filing an order to show cause with TRO the morning you are set to leave. Second, there is an increased risk of inadvertent disclosure. For example, your brother might come over every week to watch the Bills game, and he might overhear a phone call to your client or see a file you brought home.

These practical concerns are heightened when lawyers are married. For example, a late-night phone call from a client, or the need to stay late at work might tip off your spouse/opponent to a new development in your shared case. Even worse is the hands-free call from a client answered while driving, or the potential dispute over which spouse gets to work late and which one has to make dinner and put children to bed.

My wife and I have agreed that we will do our best not to find ourselves on opposite sides of a case, but our firms often do. I have had cases against her colleagues and she has had them against mine. When this happens, we make sure to inform our clients. We are careful not to make any mention of time spent on these cases to each other when answering the innocuous question "How was your day?" I never hear, "your colleague was a real jerk today" or "my client who is adverse to your firm kept me on the phone for three hours" and I never tell my wife what I think of the way her firm is handling a matter (but, of course, I have not had reason to criticize them either). We not only impose these rules on ourselves and each other at home, but also shut down the same types of conversations at work. We do not allow our colleagues to complain or comment to us about the matters our spouses are handling.

Just because my wife and I avoid litigating against each other, does not mean every couple should do the same. However, I urge you to carefully consider the risks and talk them over with your client and your spouse before asking for that conflict waiver.

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Curtis A. Johnson is a commercial litigator at Bond, Schoeneck & King, PLLC, a member of the Monroe County Bar Association Board of Trustees and vice-chair of the MCBA Ethics Committee. His wife, Laura A. Myers, is a commercial litigator at the Wolford Law Firm and a member of the board of the Foundation of the Monroe County Bar. The viewed expressed herein are Curt's own and do not reflect the views of the MCBA or his firm.

Published: Wed, Mar 14, 2018

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