Can a lawyer who chairs the board of a counseling agency represent one spouse in a divorce after the couple was counseled at that agency and referred to him?

Plain-English summary

Attorney A chaired the board of a mental health association that provided marriage and family-alcoholism counseling. A couple was counseled there, decided to divorce, and the counselor recommended that A represent the husband; as board chairman, A was privy to the parties' financial situation and everything else in their file. The Committee answered "No." It emphasized that information revealed in therapy and counseling is highly personal and potentially embarrassing, that special confidentiality obligations apply to therapists, and that many Kentucky therapists are covered by testimonial privileges.

The opinion reasoned that A's becoming privy to all information in the parties' files through the referral was problematic, since neither spouse would expect someone closely associated with the program to become, in effect, an adversary. It pointed to New Jersey Opinion 521 (1983), which held that a lawyer who participated in a private matrimonial mediation service may not later represent one party in the divorce, because the duty to zealously represent the client would conflict with the duty to preserve the other party's confidences. The Committee observed that, given A's association with the counseling agency, it could reasonably be contended he was doing indirectly through the counselor what he could not do directly, and it expressed concern that having center employees recommend the board chairman to those seeking counseling was fraught with the dangers and the appearance of a prohibited referral process.

Currency note

This opinion was issued in 1985 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 Treat this page as historical context, not current guidance.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: Why couldn't the lawyer represent the husband in the divorce?

A: The opinion concluded that, as board chairman, the lawyer was privy to the couple's confidential counseling file, so representing one spouse against the other would let him do indirectly what he could not do directly.

Q: Did it matter that the counselor, not the lawyer, made the referral?

A: The opinion treated that as part of the problem, finding the arrangement in which agency employees recommended the board chairman fraught with the dangers and appearance of a prohibited referral.

Q: What confidentiality concern drove the result?

A: The opinion stressed that counseling information is highly personal and often privileged, and that zealous representation of one spouse would conflict with preserving the other spouse's confidences, citing New Jersey Opinion 521.

Background and rules framework

The opinion applied the former Code's zealous-representation and appearance-of-impropriety provisions, DR 7-101 and DR 9-101, in the confidentiality-conflict setting addressed by New Jersey Opinion 521. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.9 (duties to former clients), and Model Rule 1.6 (confidentiality). The analysis turned on the lawyer's access to both spouses' confidences and the appearance created by the in-house referral.

Citations and references

Rules of Professional Conduct:

• DR 7-101; DR 9-101 (former Code)
• MR 1.7 (conflicts of interest); MR 1.9 (former clients); MR 1.6 (confidentiality)

Other opinions cited:

• New Jersey Op. 521 (1983): mediator may not later represent a party in the divorce

See also

• KBA Ethics Op. E-361: Lawyers as Divorce Mediators
• KBA Ethics Op. E-323: Disclosure of Spousal 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-307.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-307
Issued: September 1985

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:

Attorney A is Chairman of the Board of a Mental Health Association that provides
marriage counseling services and counseling services related to family alcoholism.
A couple undergoes counseling and treatment at the Association's center, and such
counseling results in a decision that the couple will divorce. The counselor
recommends that A represent the husband in the divorce action. A, as Chairman of
the Association, is privy to the parties' financial situation as well as to all other
information in the parties' file. May A undertake such representation?

Answer:

No.

References:

New Jersey Op. 521 (1983).
OPINION

The usual facts posed by this inquiry must be emphasized. Information revealed in therapy
and in counseling is highly personal and may be highly embarrassing if released. There are special
obligations of confidentiality imposed on therapists, and many therapists in Kentucky are covered
by testimonial privileges.
The fact that the Attorney-Board Member becomes privy to all information in the parties'
files as a result of the referral is problematical, since it seems unlikely that either marriage partner
would anticipate that one closely associated with the program would become, in effect, an
adversary.
New Jersey Opinion 521 (1983) addresses an analogous situation:
Opinion 521 Confidentiality; Divorce; Mediation Services. A lawyer
participating in a private matrimonial mediation service may not represent one of
the parties in a subsequent divorce proceeding. In his capacity as mediator the
lawyer may obtain confidential information concerning the marital situation. The
lawyer's duty to zealously represent his client in the divorce would conflict with
his duty to preserve the other party's confidences. Opinions 128, 155, 356; DR
7-101, 9-101. (10/6/83)

Because of attorney's association with the counseling agency it could reasonably be
contended that the attorney is doing indirectly, through the counselor, what he could not do
directly.
Concern must also be expressed about the propriety of the arrangement whereby the
employees of the center recommend the Chairman of the Board to those seeking counseling
services. Such a situation is fraught with the dangers of, not to mention the appearance of, a
prohibited referral process.

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.