Can a lawyer who handled a client's divorce and real estate deals later represent that client's new spouse in a divorce against her?

Plain-English summary

Attorney A had represented Client B (the wife) in her divorce, in which she was awarded a parcel of real estate (Lot D), and later in post-judgment child support and visitation matters. Client B then married Client C, whom Attorney A had also represented in his own divorce. Attorney A later handled Client B's sale of Lot D and Client B and C's joint purchase of another parcel (Lot E). Years later Client C wanted Attorney A to represent him in a divorce against Client B, one issue being the division of equity in Lot E.

The opinion analyzed the conflict under Rule 1.9, which bars representing a person in the same or a substantially related matter materially adverse to a former client absent consent. The opinion noted there is no blanket bar on suing a former client, and that the dispositive question is whether the current matter is substantially related to the former representation. It reviewed the Illinois case law on the substantial-relationship test, including that the party seeking disqualification bears the burden of proving the prior and current representations are substantially related, and that once a substantial relationship is shown there is an irrebuttable presumption that confidential information was disclosed, so no inquiry into actual disclosure is needed.

The opinion concluded that the facts matched its prior opinions disqualifying lawyers in comparable divorce situations (Opinions 86-6, 91-20, and 90-5), and found a violation of Rule 1.9. It also observed that Rule 5.6 would prevent a divorce settlement from requiring a lawyer to agree not to represent a future spouse against a party.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rules 1.9 and 5.6), while noting 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 Treat this page as historical context, not current guidance.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 ever represent a client against a former client?

A: The opinion concluded there is no blanket prohibition on suing a former client. The bar applies under Rule 1.9 only when the current matter is the same as or substantially related to the prior representation and is materially adverse to the former client, absent consent.

Q: What is the substantial-relationship test, and who has to prove it?

A: The opinion concluded the party seeking disqualification bears the burden of proving the prior and current representations are substantially related. Once that is shown, there is an irrebuttable presumption that confidential information was disclosed, so the court does not inquire into whether confidences were actually shared.

Q: Did the lawyer's handling of the couple's real estate matter?

A: Yes. The opinion concluded the prior divorce and real estate work, including the property whose equity was now disputed, was substantially related to the new divorce, supporting disqualification under Rule 1.9.

Q: Could a divorce settlement bar the lawyer from later taking such a case?

A: The opinion observed that Rule 5.6 prohibits making a restriction on a lawyer's right to practice part of the settlement of a private controversy, so a divorce agreement could not require a lawyer to agree not to represent a future spouse.

Background and rules framework

The opinion interpreted Rule 1.9 (duties to former clients and the substantial-relationship test; Model Rule 1.9) and noted Rule 5.6 (restrictions on the right to practice; Model Rule 5.6). It applied the Illinois substantial-relationship case law, including LaSalle National Bank v. Triumvera Homeowners Association and Hannan v. Watt.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9(a)
• Model Rule 5.6 (restrictions on right to practice) / Illinois Rule 5.6

Cases:

• LaSalle National Bank v. Triumvera Homeowners Association, 109 Ill. App. 3d 654, 440 N.E.2d 1073 (1st Dist. 1982), substantial-relationship test
• Hannan v. Watt, 147 Ill. App. 3d 456, 497 N.E.2d 1307 (1st Dist. 1986), burden of proving substantial relationship
• Skokie Gold Standard Liquors v. Joseph E. Seagram & Sons, Inc., 116 Ill. App. 3d 1043, 452 N.E.2d 804 (1st Dist. 1983), irrebuttable presumption of disclosure

Other opinions cited:

• ISBA Opinions 110, 363, 86-6, 91-20, and 90-5

See also

• ISBA Ethics Op. 98-01: Representation Against a Former Client
• ISBA Ethics Op. 05-01: New Client in a Matter Involving a Former Client
• CA COPRAC Op. 1980-052: Representing Against a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9415