Can a lawyer seek child support from a father when the lawyer already won child support from the same father for a different client?

Plain-English summary

A lawyer previously represented a first wife and obtained child support from a husband for a child now 15. The lawyer is asked to represent a second wife of the same husband to obtain support for her two younger children. The committee assumes the lawyer no longer represents the first wife, so she is a former client and Rule 1.9 governs.

The opinion concludes the two matters are substantially related because the second claim seeks additional support from the same payor; Illinois child-support guidelines (Section 505 of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/505) tie a parent's net income and ability to pay across the children. The interests can be materially adverse because a support award in the second case may reduce the husband's ability to keep paying the support ordered for the first child. The opinion therefore concludes the lawyer needs the first wife's informed consent under Rule 1.9, and in obtaining it should explain how a second award may affect the husband's ability to pay the first.

The opinion separately applies Rule 1.7 to the current client. It finds no direct-adversity conflict under 1.7(a)(1) because the two wives are not directly adverse, but it finds a material-limitation conflict under 1.7(a)(2): the lawyer may be less vigorous for the second wife knowing the husband may not be able to pay for all three children. If the lawyer reasonably believes competent and diligent representation is possible, the second wife (the affected client) may give informed consent. The opinion closes by noting the confidentiality limits of Rules 1.6 and 1.9(c), and that the first wife's consent under 1.9 makes it straightforward to also obtain consent to use or reveal information if needed.

In practice

Under this opinion, taking the second wife's case is permitted only with two informed consents: the former client's under Rule 1.9 (because the matters are substantially related and may be materially adverse) and the current client's under Rule 1.7(a)(2) (because the lawyer's responsibilities to the former client create a material-limitation conflict). The opinion holds there is no direct-adversity conflict under 1.7(a)(1), since the lawyer is not pursuing one wife against the other. It also holds the lawyer must observe the confidentiality duties of Rules 1.6 and 1.9(c) and that the first wife's 1.9 consent can be expanded to cover any needed use or disclosure of her information.

Common questions

Q: Is a second child-support case against the same father a conflict with my former client?

A: The opinion concludes it can be. The matters are substantially related, and a new award may be materially adverse to the former client by reducing the father's ability to pay her existing support, so Rule 1.9 consent is required.

Q: Do I need consent from my current client too?

A: Yes. The opinion finds a Rule 1.7(a)(2) material-limitation conflict because the lawyer may pull punches knowing the father cannot fully pay all the children, so the second wife must give informed consent.

Q: Is this a direct-adversity conflict under Rule 1.7(a)(1)?

A: No. The opinion concludes there is no direct adversity between the two wives because the lawyer seeks support only for the second wife's children.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.9 (duties to former clients; substantial relationship and material adversity), Rule 1.7 (concurrent conflicts, distinguishing 1.7(a)(1) direct adversity from 1.7(a)(2) material limitation), and Rule 1.6 (confidentiality), against the backdrop of the child-support guidelines in 750 ILCS 5/505. These correspond to Model Rules 1.9, 1.7, and 1.6.

Citations and references

Rules:

• Illinois RPC 1.9 (MR 1.9): duties to former clients
• Illinois RPC 1.7(a)(1), (a)(2) (MR 1.7): concurrent conflicts of interest
• Illinois RPC 1.6 (MR 1.6): confidentiality of information

Statutes:

• Illinois Marriage and Dissolution of Marriage Act, Section 505 (750 ILCS 5/505): child-support guidelines

See also

• ISBA Ethics Op. 13-02: Representing Business Partners and Later Acting Adverse to One
• NY State Bar Op. 1195: No Duty to Former Firm Clients Who Did Not Retain You
• NY State Bar Op. 534: Former Legal Aid Attorney Representing Prior Clients

Source

• Landing page: https://www.isba.org/ethics/opinions/1603