Ezel / Ethics Opinions / MOLEC

May a lawyer who represented a stepfather in divorce later represent a paternity claimant seeking visitation with the stepchildren?

Short answer Only if the stepfather consents. The opinion finds the divorce and paternity facts substantially related under Rule 4-1.9(a), even though the divorce decree did not decide custody.
Bar
MOLEC
Issued
2004

Apply this to your situation

This page answers the general question as of 2004. Ask about yours and see what the current Missouri Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2004
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
How much weight this carries: Under Missouri Supreme Court Rule 5.30, formal opinions are binding; informal opinions are advisory. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The lawyer had represented a husband in divorce from a woman with children from an earlier relationship. A man claiming paternity asked the lawyer to represent him for visitation with those children.

The opinion finds a former-client conflict under Rule 4-1.9(a). Even without a custody determination in the divorce decree, it considers the matters substantially related and requires the former husband’s consent for the proposed representation.

In practice

The opinion conditions representing the paternity claimant on consent from the former husband because the matters are substantially related.

Common questions

Q: Does absence of a custody ruling avoid the conflict?

A: No. The opinion says the facts remain substantially related under Rule 4-1.9(a).

Q: Whose consent is required?

A: The husband whom the lawyer previously represented in the divorce.

Background and rules framework

The opinion applies Rule 4-1.9(a) to the substantial relationship between the former divorce representation and proposed paternity matter.

Citations and references

Missouri Rules of Professional Conduct:

  • Rule 4-1.9

See also

Source

Original opinion text

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

QUESTION: Husband retained Attorney for a divorce action from Wife, who previously had children with a different father. The divorce decree mentioned the children but did not award custody. Husband has guardianship of the step-children. A man, who claims paternity and wants to establish visitation with the children, has contacted Attorney to represent him. Does Attorney have a conflict in representing the prospective client in a paternity action?

ANSWER: Attorney has a conflict of interest under Rule 4–1.9(a). Although the divorce decree did not resolve custody of the children, the facts are substantially related. Attorney cannot represent the prospective client unless Husband consents.

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