If both spouses separately contacted a lawyer's office about a divorce, can the lawyer still represent one of them?

Plain-English summary

Husband and Wife independently contacted Attorney Q's office to set up appointments about a divorce, and each told a staff member, in the initial phone call, not to disclose that he or she had sought representation. The lawyer was briefed on both calls. The question was whether, and under what conditions, she could represent either party, assuming neither consented to her representing the adversary.

The Commission framed the problem around Bar Rule 3.6(h)(1), which barred a lawyer from knowingly revealing or using a client's confidence or secret to the client's disadvantage without informed written consent. It rejected the idea that the absence of a formal attorney-client relationship at the time of the calls solved the problem: citing Opinion 61, the Commission held that certain Bar Rule obligations toward "clients" apply even where contract law would say no relationship had formed, and that the duty was not changed by the staff not having solicited the information. So if the lawyer or her staff obtained a secret or confidential information through the calls, she could not represent either party.

The Commission then turned to whether what was disclosed was in fact "confidential" or "secret." Under Rule 3.6(h)(5), a "confidence" tracks the attorney-client privilege, but a "secret" reaches other information the client asked to be held inviolate or whose disclosure would be embarrassing or detrimental. The Commission observed that a secret is not limited to the content of a communication: particularly in domestic-relations matters, the mere fact that a person tried to consult a lawyer about a divorce may itself be a secret, and to a substantial degree the client can define a secret simply by asking that the information be held inviolate. While mere acquisition of a confidence or secret does not by itself require disqualification (Rule 3.6(h) bars only adverse use), the Commission noted that where the lawyer knows a material confidence or secret, use may be unavoidable. It concluded that the lawyer may represent either party unless she obtained, from the initial communications, a confidence or material secret disclosed in good faith by an adverse party; in that case it recommended she represent neither unless certain her knowledge could never disadvantage the disclosing party. A footnote identified two situations where no protected secret arises: where a caller revealed information not to seek legal help but to try to disqualify the lawyer from the other side, and where the caller was clearly warned in advance that the initial contact would not be treated as confidential and disclosed anyway.

Currency note

This opinion was issued in 1997, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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, deadline, or requirement mentioned here.

Common questions

Q: Did both spouses calling the same lawyer automatically disqualify the lawyer?

A: No. The opinion concluded that contact by adversaries does not by itself limit whom the lawyer may represent; the disqualifying factor is whether she obtained a confidence or material secret from the adverse party, disclosed in good faith.

Q: Can the fact that someone called about a divorce be a "secret"?

A: Yes. The opinion reasoned that in domestic-relations matters the mere fact of an attempt to consult a lawyer about a divorce may itself be a secret under Rule 3.6(h)(5), and the client can largely define a secret by asking that the information be held inviolate.

Q: Did it matter that no formal attorney-client relationship had formed?

A: No. Citing Opinion 61, the opinion concluded that certain Bar Rule duties toward "clients" apply even before a contractual relationship forms, and that the staff not having solicited the information did not change the duty.

Q: Was there any way for the contact not to count as confidential?

A: Yes, in two situations the opinion identified: where a caller disclosed information not to seek legal help but to try to disqualify the lawyer for the other side, and where the caller was clearly warned in advance that the initial contact would not be confidential and disclosed anyway.

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(h)(1) (duty not to reveal or adversely use a client's confidence or secret) and the definitions in Rule 3.6(h)(5) ("confidence" and "secret"). These correspond to ABA Model Rule 1.6 (confidentiality of information) and, for duties arising from a consultation that does not ripen into a representation, Model Rule 1.18 (duties to a prospective client). The Commission relied on its earlier Opinion 61 for the proposition that confidentiality duties can attach before a formal engagement.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information)
• Model Rule 1.18 (duties to a prospective client)
• Maine Bar Rule 3.6(h)(1), 3.6(h)(5)

Other opinions cited:

• Maine PEC Opinion 61

See also

• ABA Formal Op. 492: Prospective-Client Duties
• ABA Formal Op. 497: Materially Adverse Conflicts

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89686

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: February 5, 1997

Question

Husband and Wife independently contact the law office of Attorney Q to set up appointments to discuss a divorce. In the process of the initial telephone conversation with a staff member each states that he/she does not want the fact he/she is requesting an appointment seeking representation regarding his/her marital situation to be disclosed to the other. The lawyer is briefed on these conversations when she returns to the office. Under what conditions, if any, can she represent either party? It is assumed that neither party gives consent for the lawyer to represent the adversary.

Discussion

While the mere fact that adversaries contact the same lawyer and request representation does not limit the ability of the lawyer to select whom she will represent, the problem raised by the present question centers on the limitations set forth in Rule 3.6(h)(1):

Except as permitted by these rules or as required by law or by order of court, a lawyer shall not, without the informed written consent of the client, knowingly reveal a confidence or secret of the client; use such a confidence or secret to the disadvantage of the client; or use such confidence or secret to the advantage of the lawyer or a third person.

The problem raised by the inquiry cannot be avoided by the fact that the lawyer had not established a formal attorney‑client relationship with either person at the time she received the information. In Opinion 61 this Commission concluded that even if under contract law an attorney‑client relationship had not been established, certain obligations imposed by the Bar Rules toward ?clients? apply. Thus, under the principles set forth in Opinion 61, if the lawyer or her staff has obtained secrets or confidential information through these telephone conversations, she cannot represent either party. This conclusion is not altered by the fact the lawyer?s staff did not solicit the information.

Of course, there remains the question as to whether the information that was disclosed was in fact ?confidential? or ?secret?. Rule 3.6(h)(5) provides some assistance. ?Confidence? includes communications traditionally protected by the attorney‑client privilege, but ?secret? expands the set of protected communications to include ?other information obtained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.?

Thus, a ?secret? is not limited to the content of a communication. Particularly in domestic relations cases, which is the context in which the present inquiry arises, the mere fact that an attempt was made to communicate with an attorney about a divorce may be a secret. Furthermore, to a substantial degree, the client has the right to define what is a secret by merely requesting that the information ?be held inviolate.?[1]

The Commission recognizes that the mere acquisition of a confidence or secret does not require disqualification. Rule 3.6(h) prohibits only the use of the confidence or secret to the advantage of another. However, it is fair to observe that in most instances where there is knowledge of a material confidence or secret, use may be unavoidable.

Thus the Commission concludes that the lawyer may represent either party unless, as a result of the initial communications, she has obtained confidential information or a secret that is material to the representation, disclosed in good faith by an adverse party. In the latter instance we recommend she not represent either party unless she is certain that her knowledge of the confidence or secret would never be disadvantageous to the disclosing party.

Footnote

[1] It ought to be pointed out that in two instances the ?client? will not be deemed to have communicated a confidence or secret, and thus the lawyer would not be disqualified from representing the opposing party. The first would occur if he contacted the law office and, in an effort to disqualify the lawyer from representing the opposing party, revealed information that is ?secret? or ?confidential?. In that instance the ?client? did not disclose a ?secret? in the context of seeking legal assistance. Quite the contrary. Rather than seeking legal assistance advice for himself, he was merely trying to restrict his adversary from doing so. Under these limited circumstances, the ?client? would have no justifiable expectation of protection under this Rule as he was disclosing a ?secret? in a calculated effort to limit the ability of an opponent to obtain counsel of his choice.

The second instance could occur when, before any information is given by the caller, he is clearly warned that any information given in the initial telephone contact will not be considered confidential, and is given at his peril. He then ignores the warning and discloses secret information.