Representing One Spouse on Domestic and Estate Matters After Representing Both Spouses
Adopted: July 22, 2016
Opinion rules that a lawyer who previously represented a husband and wife in several matters may not represent one spouse in a subsequent domestic action against the other spouse without the consent of the other spouse unless, after thoughtful and thorough analysis of a number of factors relevant to the prior representations, the lawyer determines that there is no substantial relationship between the prior representations and the domestic matter.
Inquiry #1:
Lawyer A is a partner in ABC Law Firm. Lawyer A represented Husband and Wife jointly for over 15 years. During this time, Lawyer A prepared wills for Husband and Wife, represented the estate of Wife’s mother, represented the couple’s son on several traffic citations, represented the couple on the purchase of three parcels of real property, and advised the couple on the filing of a joint bankruptcy petition (which was not filed). Lawyer A has not represented Husband and Wife on any matter in two years.
Husband and Wife are having marital difficulties and have separated. Husband has asked Lawyer A to represent him on all matters related to the dissolution of the marriage.
May Lawyer A represent Husband in the domestic action against Wife?1
Opinion #1:
No, Lawyer A has a conflict of interest under Rule 1.9(a) and may not represent Husband in the domestic action unless Wife gives informed consent.
In RPC 32 (1989), the Ethics Committee considered an inquiry essentially the same as the current inquiry and ruled that the lawyer had a conflict of interest in representing the husband against the wife in alimony and equitable distribution proceedings. The opinion holds that it is a conflict because of the nature of the prior representations and the information received by the lawyer:
[t]hese [prior representations] all require or involve communication concerning property, income, and matters relevant to the spouses’ financial circumstances so that Lawyer A will necessarily have received confidential information relevant to the pending proceedings.
RPC 32.
The Ethics Committee affirms the holding in RPC 32; however, the opinion provides little analysis of why representation of a husband and wife may disqualify a lawyer from the subsequent representation of one spouse in the legal actions attendant to a domestic dissolution. Because this situation occurs frequently—especially in small communities where there are a limited number of lawyers—the committee concluded that more explicit guidance should be provided.
Rule 1.9(a) states that a lawyer who has formerly represented a client in a matter is prohibited from representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. Obviously, Husband’s and Wife’s interests in the domestic action are materially adverse. However, whether the domestic action is the same or substantially related to the prior representations of Husband and Wife by Lawyer A is more difficult to determine.
Comment [3] to Rule 1.9 states that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” As further noted in comment [3],
[a] former client is not required to reveal the information learned by the lawyer to establish a substantial risk that the lawyer has information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.
A “domestic dissolution” or “domestic action” is essentially a winding-up and comprehensive reorganization of the economic affairs of a husband and a wife. The legal representation of either spouse necessitates an examination of the financial affairs of both spouses. Confidential information from a prior representation relative to the financial interests of the other spouse may materially advance a client’s position in the domestic dissolution.
To determine whether there is a disqualifying “substantial relationship” conflict when a lawyer who previously represented spouses proposes to represent one spouse in a domestic action, the lawyer must exercise discretion in the thoughtful and thorough analysis of the following: (1) the nature of prior representations, including an examination of whether any representation involved sensitive family issues or serious financial matters (e.g., representation on a contemplated bankruptcy); (2) the number and frequency of the prior representations; (3) the passage of time since the last representation;2 and (4) the substance of the confidential information received by the lawyer during any of the representations.
In addition to the protection of confidences, loyalty is an essential element of a lawyer’s relationship to a client. See Rule 1.7, Cmt. [1]. There are few situations in which a former client will feel more acutely that this loyalty has been compromised than when a marriage is dissolving and a lawyer who was considered the “family lawyer” takes the side of one spouse. For this reason, the lawyer must consider the totality of the circumstances and has the burden of demonstrating that prior representations of the husband and wife were not substantially related to the domestic dissolution. When it is unclear whether there is a substantial relationship between the prior representations and the current one, the lawyer must err on the side of declining to represent one spouse unless the other spouse gives informed consent.
In light of the number of prior representations over a number of years, the serious and sensitive financial interests and personal issues addressed in the prior representations, the limited passage of time since the last representation, and the relevant confidential information received during the prior representations of Husband and Wife, there is a substantial relationship between the prior representations and current representation of Husband in the domestic action. Therefore, the proposed representation of Husband violates Rule 1.9(a). Accordingly, unless Wife gives her informed consent, Lawyer A has a conflict of interest and may not undertake representation of Husband.
Inquiry #2:
May another lawyer in ABC Law Firm represent Husband in the domestic matter?
Opinion #2:
No, if Lawyer A has a conflict of interest, that conflict is imputed to all of the other lawyers in the firm. Rule 1.10(a). Another lawyer in the firm may represent Husband only with the informed consent of Wife.
Inquiry #3:
Lawyer A also previously represented Husband and Wife jointly on the preparation of reciprocal wills. May Lawyer A, or another lawyer in his firm, prepare a new will/estate plan for Husband?
Opinion #3:
Yes, if there is a separation agreement between Husband and Wife that authorizes each spouse to prepare a new estate plan, the wife gives informed consent confirmed in writing, or an order of divorce has been entered. Cf. RPC 229 (1996)(lawyer who jointly represented husband and wife on estate plan may not prepare codicil to the will of one spouse without knowledge of the other if each spouse agreed not to change estate plan without informing other spouse).
As noted in Opinion #1, Rule 1.9(a) prohibits a lawyer who has represented a client in a matter from representing another client in the same or a substantially related matter in which the new client’s interests are materially adverse to those of the former client unless the former client consents. Lawyer A’s prior representation of Husband and Wife on the preparation of reciprocal wills constitutes the same matter as the preparation of a new will for Husband. However, once the couple has executed an agreement to waive their claims against each other’s estates or they are divorced, the element of material adversity required for disqualification under Rule 1.9 is no longer present.
Endnotes
1. This opinion applies to all domestic partner relationships.
2. See Rule 1.9, Comment [3]: “[i]nformation acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related.”