Can an Illinois lawyer who consulted with one spouse about a divorce later represent the other spouse in the same divorce?

Plain-English summary

A wife consulted a lawyer about a contemplated divorce, filling out a marital information sheet and discussing her rights, support, visitation, maintenance, property, and the husband's affair. The consultation ended without her hiring the lawyer. A month later the husband came to the same lawyer to hire him for the same divorce; the wife had by then retained other counsel and filed for divorce. The inquiry asked whether the lawyer could represent the husband.

The opinion holds that whether the wife indicated she wanted to hire the lawyer, or in fact hired someone else, is not dispositive, and neither is the older King v. King inquiry into whether an attorney-client relationship formed. Under Illinois's 2010 Rules, the question is governed by Rule 1.18, "Duties to Prospective Client." The wife is a prospective client because she discussed forming a client-lawyer relationship with the lawyer.

Under Rule 1.18(c), it is a conflict to represent a person whose interests are materially adverse to a prospective client's in the same or a substantially related matter if the lawyer received information that "could be significantly harmful" to the prospective client. Here the divorce is plainly the same matter and the spouses' interests are materially adverse. Whether the information was "significantly harmful" is fact-specific and unguided by the Rule's text, but the opinion observes that the biographical detail, the knowledge of the husband's affair, and the advice given would likely qualify. If so, the lawyer is disqualified, and the conflict is imputed to the whole firm.

The opinion notes two exceptions in Rule 1.18(d): the representation may proceed if both the affected client and the prospective client give informed consent (a defined term in Rule 1.0(e) carrying significant disclosure obligations), or if the consulting lawyer is timely screened and took reasonable measures to avoid exposure to disqualifying information so a partner can handle the matter. Regardless, Rule 1.18(b) bars the lawyer from using or revealing the wife's information unless she gives informed consent or it becomes generally known.

In practice

The opinion holds that, under Rule 1.18, a consulting spouse is a prospective client, and a lawyer who learned significantly harmful information cannot take the other spouse's side in the same divorce (with imputation to the firm) absent informed consent from both or timely screening of the consulting lawyer. The opinion treats whether the prospective client retained the lawyer as not dispositive, and notes the standalone duty under Rule 1.18(b) not to use or reveal the prospective client's information. The "significantly harmful" determination is fact-specific.

Common questions

Q: Does the prospective client have to hire the lawyer for a conflict to arise?

A: No. The opinion holds that whether the wife indicated she wanted to hire the lawyer, or actually retained someone else, is not dispositive; the Rule 1.18 duties attach because she consulted the lawyer about forming a representation.

Q: What makes information "significantly harmful" under Rule 1.18?

A: The opinion notes neither the Rule nor its Comments define the term and treats it as fact-specific, but suggests that biographical detail sufficient to draft a petition, knowledge of the spouse's affair, and substantive marital advice would likely qualify.

Q: Can the lawyer still take the case despite the conflict?

A: Possibly. Rule 1.18(d) allows it if both the affected client and the prospective client give informed consent, or if the consulting lawyer is timely screened and took reasonable measures to avoid disqualifying information so another firm lawyer can proceed.

Q: Can the lawyer use what the prospective client disclosed?

A: No, absent consent. Rule 1.18(b) bars using or revealing the prospective client's information unless she gives informed consent or the information has become generally known.

Background and rules framework

The opinion applies Illinois Rule of Professional Conduct 1.18 (Model Rule 1.18, duties to prospective clients), adopted in Illinois's 2010 Rules, replacing the older attorney-client-relationship analysis of King v. King. It relies on Rule 1.18(b)-(d) for the use-of-information and disqualification provisions, the Rule 1.0(e) definition of "informed consent," and Rule 1.9(c) for the generally-known exception.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.18 (duties to prospective clients) / MR 1.18
• Illinois RPC 1.0(e) (informed consent defined) / MR 1.0(e)
• Illinois RPC 1.9(c) (use of former-client information) / MR 1.9

Cases:

• King v. King, 52 Ill. App. 3d 749, 367 N.E.2d 1358 (4th Dist. 1977), older attorney-client-relationship analysis
• In re Marriage of Newton, 955 N.E.2d 572 (1st Dist. 2011), relationship formed after extended divorce consultation

See also

• NYC Bar Ethics Op. 2013-01: Duties to Prospective Clients After Beauty Contests
• ISBA Ethics Op. 18-03: Communicating With a Prospective Client Who Is Represented

Source

• Landing page: https://www.isba.org/ethics/opinions/1205