If a lawyer filed a joint petition for an uncontested divorce, can the lawyer later take one spouse's side when the parties turn adversarial?

Plain-English summary

The committee was asked whether an attorney who files a joint petition in an uncontested divorce may represent either party in subsequent related litigation if an adversary attitude develops, and answered no. Noting that no KBA or ABA opinion addressed the question directly, it worked through analogous ABA Informal Opinions. ABA Informal Opinion 1125 involved a lawyer who had represented a wife and three years later was retained by the husband in a divorce, with the wife consenting and then withdrawing consent; the committee there advised the lawyer to withdraw, finding a possible conflict of interest even given the wife's unfair withdrawal of consent. The committee read that to suggest consent might have allowed the representation, but pointed to EC 5-15, which states a lawyer should never represent multiple clients with differing interests in litigation and would rarely be justified representing clients with potentially differing interests, and must withdraw if the interests become actually differing.

The committee then cited ABA Informal Opinion 1157, which advised against a lawyer assuming dual representation of a husband and his ex-wife even with consent, because the facts clearly indicated differing interests that could lead to divulging client confidences. In the situation posed, the committee reasoned, one of the parties necessarily becomes a former client, and if the attorney retains one spouse the former client becomes an adverse party in the same action in which the attorney once represented him. Relying on ABA Formal Opinions 33 (1931) and 167 (1937) (a lawyer cannot accept employment against a former client whom he represented in the same action) and ABA Informal Opinion 885 (1965) (avoid representation against a former client where there may be an appearance of conflict or possible violation of confidence, even if not actually so), and on EC 9-2's direction to act in a manner that promotes public confidence in the legal system, the committee concluded the lawyer should withdraw, because representing one party after having represented both would give rise to the possibility of disclosing confidences and could prejudice the former client.

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the lawyer who filed a joint divorce petition later represent one spouse against the other?

A: No, under this opinion, once the parties become adversarial. The other party is a former client who would be opposed in the same action, so the lawyer should withdraw.

Q: Could the parties' consent cure the conflict?

A: The committee was skeptical; citing EC 5-15 and ABA Informal Opinion 1157, it concluded the lawyer should not undertake the representation even with consent where interests clearly differ and confidences could be divulged.

Q: What is the core risk the committee identified?

A: That representing one former joint client against the other could lead to disclosing confidences and prejudice the former client.

Background and rules framework

The opinion applies DR 5-105 (conflicts in multiple representation) and EC 5-14 through EC 5-16 and EC 9-2 of the former Code, drawing on ABA opinions about successive and dual representation of spouses. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (multiple-client conflicts), EC 5-14, EC 5-15, EC 5-16, EC 9-2; modern analogs Model Rule 1.7 and Model Rule 1.9

Other opinions cited:

• ABA Formal Opinions 33 (1931), 167 (1937); ABA Informal Opinions 885 (1965), 1125 (1969), 1157 (1970)

See also

• KBA Ethics Op. E-206: Married Lawyers on Opposite Sides
• KBA Ethics Op. E-212: Former Government Lawyer Conflicts

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-207.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-207
Issued: January 1979

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney who files a joint petition in an uncontested divorce represent either of the parties in subsequent related litigation if an adversary attitude develops between the parties?

Answer:

No.

References:

DR 5-105(A)(B)(C); EC 5-14, 5-15, 5-16, 9-2; ABA Formal Opinion 33 (1931), 167 (1937); ABA Informal Opinion 885 (1965), 1125 (1969), 1157 (1970)
OPINION

There have been no KBA or ABA opinions dealing directly with this question. However, a similar situation was discussed in ABA Informal Opinion 1125 (1965). In this case the attorney had represented the wife in a domestic problem, and three years later was retained by the husband in a divorce action. The wife gave her consent to this, but later withdrew it. In this case, the Committee on Ethics said:
“… we feel it would be best for the attorney to withdraw from representing the husband in the case. We feel that it was unfair for the wife to give her consent and then withdraw the consent for the attorney to represent her husband, but even in view of the unfairness of this action on the part of the wife, the Committee feels that there could be a possible conflict of interest.”
The Committee seems to be saying that had the wife not withdrawn her consent, the attorney could have represented the husband. However, EC 5-15 states very clearly:
“A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment....”
ABA Informal Opinion 1157 (1970) posed the question: “… can Attorney B assume dual representation of defendant husband and ex-wife 2, even with the consent of ex-wife 2?” This

representation was after the decree and property settlement with wife 2, and would be in connection with a suit involving wife 1, but the Committee said:
“… the Committee is of the opinion that Attorney B should not accept representation in this matter, nor continue to represent the husband although the wife 2 has given her consent. The facts very clearly indicate a difference of interests between the husband and wife 2 and would very possibly lead to Attorney B divulging confidences of his client.
In the question posed, one of the parties necessarily becomes a former client of the attorney. If the attorney retains a spouse as a client, the former client becomes an adverse party in the same action in which he was once represented by the attorney. ABA Formal Opinion 33 (1931) and 167 (1937) both stand for the proposition that an attorney cannot accept employment in an action against a former client if he once represented the client in the same action. ABA Informal Opinion 885 (1965) states that “the lawyer should avoid representation of a party in a suit against a former client, where there may be the appearance of a conflict of interest or a possible violation of confidence, even though this may not be true in fact.” Considering that the situation posed by the question does appear to be a conflict of interest, the answer is found in EC 9-2: “When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.” For an attorney to represent one party in litigation when he has represented both parties prior to litigation would certainly give rise to the possibility of disclosure of confidences and could potentially prejudice the former client. Therefore, the attorney should withdraw from employment in this situation.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.