National Scope
ABA Model Rule 1.7 and the 50-State Problem
The model rule
The American Bar Association writes the Model Rules of Professional Conduct, which almost every U.S. state adopts (with state-specific modifications) as the foundation of its attorney-ethics framework. ABA Model Rule 1.7 governs concurrent conflicts of interest. The relevant comment language uses the phrase:
“closely related by blood or marriage”
This phrasing was authored before same-sex marriage was legal anywhere in the United States. It has not been updated to address:
- Domestic partners
- Long-term cohabiting partners
- Civil unions
- Couples in any household-equivalent arrangement that falls outside marriage and outside lineal blood relation
Why this is not a Texas-specific problem
Most state bars adopt the ABA Model Rules verbatim or with light state-specific modifications. The “blood or marriage” language has propagated into the conflict-of-interest framework of essentially every state. Two consequences:
- In every U.S. jurisdiction, an attorney who is the long-term unmarried domestic partner of a prosecutor, judge, district attorney, U.S. attorney, or other adverse-party-controlling official can practice in the same forum without triggering the formal conflict-of-interest review mechanism — even though every substantive condition the rule was written to address is present.
- Federal jurisdictions apply state ethics rules of the state in which the federal court sits; the gap therefore extends to U.S. Attorney offices and federal-court practice.
Where the gap operates
The structural gap applies to any pairing where one attorney holds power adverse to the practice area of the other:
| Adverse-power role | Partner role | Jurisdictional surface |
|---|---|---|
| District Attorney / County Attorney | Criminal-defense attorney | County |
| U.S. Attorney | Federal criminal-defense attorney | Federal district |
| Attorney General | Lawyers practicing against the state | Statewide |
| State or federal judge | Attorneys appearing in their court | Court division |
| Regulatory agency counsel | Attorneys representing regulated parties | Agency-jurisdiction-wide |
| Public defender’s office head | Prosecutors in the same county | County |
In every cell, a married couple in the configuration would face the formal-conflict trigger. A long-term unmarried domestic-partner couple in the configuration would not — at least not by the formal text of the controlling rules.
The structural conditions for the gap
Three conditions must hold for the gap to exist in a given jurisdiction:
- The adverse-power role exists (DA, U.S. Attorney, judge, etc.).
- The partner attorney practices in the role’s jurisdictional surface.
- The couple is unmarried (legally, not functionally).
All three are satisfied in any populated jurisdiction. The gap is not theoretical.
Survey scope
A complete documentation of the gap’s reach requires:
| Survey | Resolution method |
|---|---|
| All 50 state bar conflict rules | Read each state’s adopted version of Rule 1.7 and the state’s published ethics opinions; identify whether any state has updated the language post-Obergefell. |
| Federal-court local rules | Each U.S. district court adopts the ethics rules of its host state by default. Survey local rules for any federal-specific extensions. |
| Texas Bar opinions 2015–2026 | Texas Center for Legal Ethics archive — chronological review for any opinion addressing post-Obergefell coverage. |
| State and federal disciplinary case law | Identify any reported case where a grievance committee or court has extended the spousal language to a non-marital partnership through interpretation rather than rule revision. |
What a clean public-policy argument looks like
The gap is documentable, structural, non-partisan, and remediable through the normal professional-responsibility process. A Texas legislator, a Texas Bar member, or an ABA committee member could act on it without inventing facts. The argument has the following clean form:
- State the substantive purpose of the rule (Opinion 539’s financial-interest analysis).
- Show that the substantive condition the rule targets is present in unmarried domestic-partner households.
- Show that the formal language does not reach those households.
- Propose the remedy (extend the language to cover any household with shared financial entanglement, regardless of marital status).
Open questions
- Has the ABA Standing Committee on Ethics and Professional Responsibility considered the post-Obergefell gap in any of its formal opinions or working papers? Resolution: ABA Center for Professional Responsibility archives.
- Have any of the state-bar ethics committees that have updated Rule 1.7 since 2015 included domestic-partner coverage? Resolution: 50-state survey.
- Are there published academic critiques of the gap in legal-ethics scholarship? Resolution: Westlaw / HeinOnline literature search on “domestic partner conflict of interest” and “Obergefell legal ethics.”