Can a lawyer who jointly represented a couple on their business and estate matters later represent one spouse in their divorce?

Plain-English summary

Over a twenty-seven-year marriage, Attorney A represented a husband and wife on all of their business endeavors, including estate planning, investment real estate, and incorporating a business, making him intimately acquainted with both spouses' finances. After the wife filed for dissolution, Attorney A's new firm filed an appearance for the husband, with A's new partner ostensibly handling the divorce. The inquiry asked whether A's firm had a conflict because of A's prior representation of the wife, and whether the firm could represent the husband.

The committee applied Rule 1.9 of the 1990 Illinois Rules: a lawyer who formerly represented a client may not represent another person in the same or a substantially related matter where interests are materially adverse to the former client absent consent after disclosure, and may not use information from the prior representation to the former client's disadvantage. The committee found dividing marital assets normally materially adverse and thought it difficult to imagine the wife consenting; it added that A is barred from using confidences from the joint representation, which a married couple's joint counseling necessarily shared (Rule 1.6(a) allows sharing only with consent). Because the 1980 Code's Rule 5-105 had been similarly construed, the result was the same under either rule set.

Finally, the committee noted that under Rule 1.10(a), the disqualification is imputed to A's partners: no lawyer in a firm may represent a client when another lawyer in the firm would be barred by Rules 1.7, 1.8(c), or 1.9. It concluded that a lawyer may not represent one spouse in a divorce against the other where he previously represented both jointly, and that the prohibition extends to his partner and firm; while consent may rarely be properly granted, eliminating the conflict and the appearance of impropriety conforms to the spirit of the Rules' Preamble.

Currency note

This opinion was issued in November 1990, under the 1990 Illinois Rules of Professional Conduct (with reference to the 1980 Code) and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 1.6, 1.9, and 1.10), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer who represented a couple jointly later take one spouse's side in their divorce?

A: The opinion concluded no; dividing marital assets is materially adverse to the former joint client (the other spouse), so Rule 1.9 bars the representation absent that client's consent after disclosure.

Q: Does it matter that a different lawyer in the firm is handling the divorce?

A: Per the opinion, no; Rule 1.10(a) imputes the disqualification to the whole firm, so a partner may not represent the husband where the original lawyer would be barred under Rule 1.9.

Q: Why are the confidences from the prior joint work a problem?

A: The opinion reasoned that jointly counseling a couple on investments and estate planning necessarily involves sharing confidences, and Rule 1.9 bars using that information to the former client's disadvantage; Rule 1.6 allows its use only with consent.

Background and rules framework

The opinion applied the 1990 Illinois Rules of Professional Conduct: Rule 1.9 (duties to former clients), Rule 1.6 (confidentiality), and Rule 1.10(a) (imputed disqualification), and noted the 1980 Code's Rule 5-105 had been construed to the same effect. These correspond to ABA Model Rules 1.9, 1.6, and 1.10. The Board's 2010 affirmation maps the analysis to current Illinois Rules 1.6, 1.9, and 1.10.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.6, 1.9(a), 1.10(a) (1990 Rules, applied in the opinion); 1980 Code Rule 5-105
• MR 1.6 (confidentiality), MR 1.9 (duties to former clients), MR 1.10 (imputation of conflicts)

See also

• ISBA Ethics Op. 90-04: A Former Judge Representing a Party From a Case He Heard
• ISBA Ethics Op. 88-07: Suing a Former Government Client With "Public" Confidences

Source

• Landing page: https://www.isba.org/ethics/opinions/9005