Can a lawyer who once represented both spouses later represent the husband in their divorce?

Plain-English summary

On two prior occasions the inquiring attorney had represented a husband and wife together, first in the sale of jointly owned real estate and then in recovering funds the wife had invested. Through that work he gained knowledge of matters, both confidential and of public record, relating to the couple's economic condition. The wife then retained another attorney and filed for dissolution of marriage; no children were involved, but a substantial dispute over economic matters was anticipated. The lawyer asked whether he could ethically represent the husband.

The committee began with Canon 9's admonition that a lawyer should avoid even the appearance of professional impropriety. It noted Opinion 71-14, that a lawyer is not forever barred from representation adverse to a former client absent consent where the former representation is unrelated in subject matter or distant in time, but also Opinion 60-9, that in a divorce it is not advisable to represent the wife after the husband had been a client. The committee found the question turned on whether the lawyer acquired information from the wife, as her attorney, that is material to the dissolution and that, in properly representing the husband, he would be obligated to use to her disadvantage. Because the inquiry did not clarify the significance of that information or how it might be used, the committee gave neither definitive approval nor disapproval. It found the wife's consent relevant though not necessarily controlling, citing Opinion 72-17 and ABA Informal Opinion 1125. In summary, it found the lawyer not prohibited from representing the husband solely by reason of the prior joint representation, but cautioned that doing so without the wife's consent was likely to subject him to the appearance of impropriety Canon 9 seeks to avoid. One member would have disapproved the representation on the stated facts, citing Opinion 60-9.

Currency note

This opinion was issued in 1973, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.9 and 4-1.6 before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer represent the husband after jointly representing both spouses?

A: Under this opinion, he was not prohibited solely by the prior joint representation, provided he did not have confidential information from the wife that he would be obligated to use to her disadvantage.

Q: What was the deciding factor?

A: The committee said the critical consideration was whether the lawyer would be in the position of using information obtained from the wife to her disadvantage in the dissolution.

Q: Did the wife's consent matter?

A: Yes. The committee found the wife's consent relevant, though not necessarily controlling, and cautioned that proceeding without it risked the appearance of impropriety.

Background and rules framework

The opinion applied Canon 9 of the former Code of Professional Responsibility (avoiding the appearance of impropriety) to a successive representation against a former joint client. In current Florida practice the subject corresponds to Rule 4-1.9 (conflict of interest, former client) and Rule 4-1.6 (confidentiality, including the protection of a former client's information); the Model Rule analogues are 1.9 and 1.6.

Citations and references

Rules of Professional Conduct:

• CPR Canon 9 (avoiding even the appearance of professional impropriety)

Other opinions cited:

• Florida Opinion 60-9 (former Canons of Ethics): representation in a divorce after representing the other spouse
• Florida Opinion 71-14: representation adverse to a former client absent consent
• Florida Opinion 72-17 and ABA Informal Opinion 1125: relevance of consent

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-73-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-73-3-1-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 73-3
April 30, 1973
Advisory ethics opinions are not binding.
An attorney who previously represented both husband and wife may represent the husband in a dissolution of marriage proceeding as long as he did not obtain confidential information from the wife during the former representation which could be used to her disadvantage.
CPR: Canon 9
Opinions: 60-9, 71-14, 72-17; ABA Informal 1125
Chairman Zehmer stated the opinion of the committee:
On two prior occasions the inquiring attorney represented a husband and wife in connection with, first, the sale of some jointly owned real estate and, second, recovering some funds which the wife had invested. By reason of this representation, the inquiring attorney gained knowledge of matters both confidential and of public record relating to the economic condition of the husband and wife. Now the wife has employed another attorney and filed dissolution of marriage proceedings. No children are involved but a substantial dispute over economic matters is anticipated. The inquirer asks whether he may ethically represent the husband in view of his prior representation of both the wife and husband.
The resolution of this inquiry must begin with the admonition in Canon 9 of the Code of Professional Responsibility that "a lawyer should avoid even the appearance of professional impropriety."
We have previously held in Opinion 71-14 that
[Although] a lawyer has rendered service for a particular client, there is nothing in the CPR to the effect he may never undertake representation adverse to the former client in the absence of consent. Generally, a lawyer should be wary of accepting employment adverse to a former client and he may not switch sides with respect to the same or related matters. However, there can be situations wherein former representation is so unrelated in subject matter or so distant in time that the lawyer is not ethically barred from representation in opposition to the former client notwithstanding lack of consent.
On the other hand, in Opinion 60-9, decided under the former Canons of Ethics, the Committee determined that in a divorce proceeding it is not advisable for an attorney to represent the wife after the husband had been a client or to represent both parties despite good intentions and full disclosure.
The present inquiry turns upon whether the inquiring lawyer acquired information from the wife as her attorney which is material to the marriage dissolution proceeding and which, in properly representing the husband, the lawyer would be obligated to use to the disadvantage of the wife. As the inquiry does not clearly identify the significance of the information gained by the inquirer through his former representation of the wife nor the manner in which such information could be used in the marriage dissolution proceedings, the Committee does not give definitive approval or disapproval to the proposed representation. Certainly the wife's consent to this representation is relevant, although not necessarily controlling, to what the inquiring lawyer can properly do now. See Florida Opinion No. 72-17 and ABA Informal Opinion No. 1125. The critical consideration, it seems, is whether or not the lawyer will find himself in the position of using information obtained from the wife to her disadvantage in the marriage dissolution proceedings. Thus, the inquiring attorney will need honestly and objectively to apply the appropriate guidelines to his factual situation, keeping in mind the admonition of Canon 9.
In summary, the Committee finds that the inquiring attorney is not prohibited by the CPR from representing the husband solely by reason of his prior representation of the wife, but it does caution the inquiring attorney that such representation, absent consent from the wife, is likely to subject him to the appearance of professional impropriety that Canon 9 seeks to avoid.
One member of the Committee, referring to Opinion 60-9, would disapprove of the proposed representation on the facts stated.