Can a lawyer represent a husband in a divorce after having represented the wife in an earlier estate matter?

Plain-English summary

A lawyer had represented a client (Ms. X) in an estate dispute with her siblings about three years earlier, conferring with her and her husband but discussing no domestic matters. About eighteen months before this inquiry, Ms. X called wanting representation in a domestic matter; the lawyer declined and learned nothing about her domestic situation. When Ms. X later filed for divorce, her husband retained the lawyer to defend. Ms. X's divorce attorney moved to recuse him, asserting that he had gained information from the earlier estate representation that could be used against her. The lawyer, who believed the recusal claim untrue, asked whether he should withdraw.

The Disciplinary Commission concluded it would not be ethically proper for the lawyer to continue representing the husband. It restated the conditions under which an attorney may proceed against a former client: there must be no substantial relationship between the first and the subsequent representation; the attorney must not, by virtue of the first representation, have been in a position to learn confidences or secrets of the first client that could be used to that client's detriment or embarrassment; and the prior relationship must not have been of a character that would preclude full, vigorous, and undiluted loyalty to the new client. On occasion the Commission has required a waiver from the former client before allowing the subsequent representation.

Because the former client asserted that there was a substantial relationship between the prior and present representations and that confidences and secrets relating to her mental and physical background had been made known to the attorney, the Commission concluded the representation could not continue. It emphasized that these standards are in large part subjective, and that when the attorney and the former client disagree over disqualification, the conflict should, in an abundance of caution, be resolved in favor of the former client.

Currency note

This opinion was issued in 1990, under the former Alabama Code of Professional Responsibility (DR 5-105, EC 4-5) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. Duties to former clients, including the substantial-relationship test, are now governed by Rule 1.9. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer take a case against a former client?

A: Per the opinion, only if the new matter is not substantially related to the prior representation and the lawyer could not have learned confidences or secrets usable against the former client; otherwise the lawyer is disqualified.

Q: What happens when the lawyer and the former client disagree about whether there's a conflict?

A: The opinion concluded that because the standards are largely subjective, such a dispute should, in an abundance of caution, be resolved in favor of the former client.

Q: Did it matter that the lawyer believed the former client's confidentiality claim was untrue?

A: The opinion concluded the lawyer should still withdraw, because the former client asserted a substantial relationship and that sensitive confidences had been learned, and that assertion controlled the cautious resolution.

Background and rules framework

The opinion applied the former-client conflict standards the Disciplinary Commission had developed under the Alabama Code of Professional Responsibility (DR 5-105; EC 4-5 on not using a client's information to the client's disadvantage), referencing its prior Opinions RO-87-108, RO-88-06, and RO-88-69. Duties to former clients are now governed by Rule 1.9.

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. DR 5-105 and EC 4-5 (adverse representation; use of a former client's information); now Model Rule 1.9

Other opinions cited:

• Alabama Ethics Opinions RO-87-108, RO-88-06, RO-88-69 (former-client conflict and the substantial-relationship test)

See also

• AL Ethics Op. 1991-42: bringing suit against a former client
• AL Ethics Op. 1992-21: a firm representing a client adverse to a present client
• AL Ethics Op. 1990-05: imputed disqualification in a district attorney's office
• RI Ethics Advisory Panel Op. 2001-05: Conflict Barring Representation Against a Former Client Over the Same Property
• RI EAP Op. 2004-06: Nonwaivable Rule 1.9 Conflict Bars Representing Wife's Extreme-Cruelty Claim Against Former Joint-Representation Husband

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1990-03/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-90-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative. The opinion reproduced below was followed in the official source by copies of the referenced Opinions RO-87-108, RO-88-06, and RO-88-69.

ETHICS OPINION

RO-90-03

Lawyer should not undertake representation of client in matter adverse to former client which matter is substantially related to prior representation and where lawyer gained confidential information which may be used to detriment of former client.

QUESTION:

"Several years ago I talked to a person that I will refer to hereinafter as Ms. X. This relationship resulted in Ms. X hiring me for the purpose of protecting her interest in an estate matter ongoing in another county. This matter concerned a disagreement that she was having with her brothers, sisters, etc. relative to the disposition of estate property. Ultimately, I was assisted by another attorney in the county where the estate property was located and the matter was resolved. I would estimate that my last contact with Ms. X relative to the estate or any other matter was approximately three years ago. At that point in time I not only conferred with Ms. X but also her husband. At no time on that occasion were any matters of a domestic nature discussed concerning Ms. X and her husband.

Perhaps eighteen months ago Ms. X contacted my office by telephone and requested to see me relative to a domestic matter. I refused to see her and instructed my secretary that I would not be interested in representing her in any other matters. No information on that occasion was received from Ms. X relative to any domestic entanglements.

Several months ago or fall 1989, Ms. X filed a bill of complaint for divorce against her husband. Ms. X is being represented in this matter by an Anytown attorney. Ms. X's husband contacted me and retained me to defend this case. I have been doing so for the last several months. In the fact that I have never discussed with Ms. X any domestic matters and in the fact that I was not representing her currently on any other matters and had not for several years, I saw no problem in undertaking to represent her husband. As of late, a Motion to Recuse has been filed by Ms. X's attorney of which a copy I enclose for your inspection. She alleges in this petition that I have gained information from formerly representing her estate matters that can be used against her in the domestic matter. In my opinion, this is totally untrue. In any event, I would appreciate your opinion as to whether I should withdraw from this matter."

ADDITIONAL FACTS:

Attached as additional information is the Motion to Recuse filed in this matter.

ANSWER:

In previous opinions the Disciplinary Commission has opined that it is permissible for an attorney to undertake representation against a former client but has expressly conditioned that employment upon several considerations. First, the Commission has held that there should be no substantial relationship between the first representation and the subsequent representation. Secondly, the Commission has held that the attorney, by virtue of the first representation, should not have been in a position to have learned confidences or secrets of the first client that could subsequently be used to the detriment of, or to embarrass, the former client. Third, the Commission has stated that the relationship between the attorney and the first client must not have been of such a character or nature so as to preclude the attorney from rendering, to the subsequent client, full, vigorous and undiluted loyalty. On occasion the Disciplinary Commission has required waiver from the former client before permitting the subsequent representation.

On the facts stated, and particularly in view of the fact that the former client has asserted that there is a substantial relationship between the prior representation and the present representation and further that certain confidences and secrets relating to the former client's mental and physical background, which could now be used to the detriment of, or to embarrass, the former client were made known to the attorney by virtue of the former representation, we are of the opinion that it would not be ethically proper for you to continue in your representation of Mr. X. The standards imposed by the Commission are in large part subjective. When there is a conflict or a disagreement such as this between the attorney and the former client as to disqualification, in an abundance of caution, this conflict should be resolved in favor of the former client.

DISCUSSION:

In lieu of further discussion see Opinions 87-108, 88-06, and 88-69.

AWJ/vf

1/22/90