Legal Ethics Opinion No. 1481

Conflict of Interest: Non-Lawyer Spouse Counsels Wife While 
Attorney/Spouse Represents Husband in Divorce

You have presented a hypothetical situation in which Mrs. A, a
nonattorney, works as a victim's assistant with a women's crisis
center.  Mrs. A also does the billing for her husband's law
practice on a non-pay basis. 

You indicate that, while doing billing at her husband's law
office on a weekend, Mrs. A received an emergency [crisis center]
call and agreed to speak with the caller at the law office.  No
one else was present at the office at that time. The caller, Mrs.
B, who already was represented by retained counsel, revealed
confidential information about her case to Mrs. A.  After this
conversation, Mrs. A did not have an ongoing relationship with
Mrs. B, due to Mrs. B's ejection from the crisis center "safe
house" for violation of center rules.  Mrs. A did not reveal to
her attorney-husband the fact or the details of her conversation
with Mrs. B. 

You further advise that, five months later, Mr. B sought to
retain Mrs. A's attorney-husband to defend the divorce action
brought by Mrs. B and her new attorney, Mrs. B having fired her
first attorney.  Mrs. A's attorney-husband accepted the case,
having no knowledge of his wife's conversation with Mrs. B.
Finally, you indicate that, four months after attorney A accepted
employment by Mr. B, Mrs. B hired the fifth attorney to handle
her case.  Substantial discovery was conducted and, one day prior
to two sanctions hearings against Mrs. B's new attorney (and
approximately fifteen months after Mrs. A's conversation with
Mrs. B), the new attorney filed a motion to remove Mr. B's
attorney, husband of Mrs. A, as counsel, pursuant to the
Disciplinary Rules.  Only when asked about the allegations of the
motion, did Mrs. A tell her attorney-husband that she had spoken
with Mrs. B in her capacity as a victim's assistant for the
crisis center and that the conversation took place while in his
law office.
You have asked the committee to opine whether, under the facts of
the inquiry, attorney A may be precluded from representing Mr. B
in the divorce action filed by Mrs. B because of confidences
revealed by Mrs. B to the attorney's spouse in her private
capacity as a victim's assistance counselor, prior to the
attorney's having accepted representation of Mr. B, when such
conversation took place at the attorney's office after normal
working hours. 

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 4-101, which requires the preservation of
client confidences and secrets; and DR 3-l04(C) which requires
that a lawyer that employs nonlawyer personnel shall exercise a
high standard of care to assure compliance by the nonlawyer
personnel with the applicable provisions of the Code of
Professional Responsibility.

In keeping with DR 3-l04(C), the committee cautions that an
attorney must take care to ensure that nonlawyer employees do not
disclose or use client confidences.  The committee is of the
belief, however, that the attorney's spouse was acting in her
capacity as victim's assistant, rather than as unpaid billing
clerk, when she spoke confidentially with Mrs. B.  Indeed, the
facts indicate that Mrs. B was never a client of the
attorney-husband and it is possible that Mrs. A, in her capacity
as a victim's assistant, may have an additional and separate
professional a duty to guard the communications or information
gained from Mrs. B.

Since the facts indicate that the attorney-husband had no
knowledge of his wife's conversation with Mrs. B, the committee
opines that, since no attorney-client relationship was
established, nor confidences shared between the attorney-husband
and Mrs. B, the attorney is not precluded from continuing his
representation of Mr. B.   See LEO #l365.

The committee cautions, however, that should it be subsequently
determined by a trier of fact that the attorney does have
knowledge of Mrs. B's confidences, the attorney's continued
representation of Mr. B, which would necessarily mandate the use
of such confidences, may be improper. 

Committee Opinion
August 24, 1992