Could a lawyer represent a divorce client after the lawyer's former firm prepared that client's prenuptial agreement?

Plain-English summary

A lawyer asked about representing a divorce client after a former firm prepared the prenuptial agreement. The opinion assumed that firm represented both parties because the lawyer had not specified whom it represented.

Under that assumption, the opinion found a Rule 4-1.9 conflict if the lawyer obtained confidential information about the agreement while at the former firm. If the lawyer did not, it found no conflict. It noted that discussions with other firm members could have conveyed confidential information even without file or client contact.

The opinion said an existing conflict could be waived. It said the former client should be asked only after full disclosure and an opportunity and encouragement to seek independent counsel.

Currency note

This 1995 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Did work at the firm that prepared the agreement automatically create a conflict?

A: No. On the opinion's assumption that the firm represented both parties, the conflict depended on whether the lawyer obtained confidential information about the agreement.

Q: Could information have been obtained without reviewing the file?

A: Yes. The opinion pointed to possible discussions with other firm members even without contact with the file or clients.

Q: Could a conflict be waived?

A: Yes. The opinion called for full disclosure and an opportunity and encouragement for the former client to obtain independent advice before seeking waiver.

Background and rules framework

The opinion applied Missouri Rule 4-1.9 on an express assumption that the former firm represented both parties to the prenuptial agreement. Its conflict analysis turned on whether the lawyer acquired confidential information.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.9

See also

• Missouri Informal Op. 20000048: Former client protective order
• Missouri Informal Op. 2011-05: Former guardian ad litem conflict

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950174/

Original opinion text

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

QUESTION: Client A has asked Attorney for representation in a divorce. A firm for which Attorney worked at the time prepared the prenuptial agreement. May Attorney represent Client A? Can any conflicts be cured by waiver? ANSWER: Attorney has not indicated which party to the prenuptial agreement the former firm represented. Therefore, this is based on the assumption that it represented both parties. If Attorney obtained confidential information regarding the prenuptial agreement while Attorney was a member of the firm that prepared the agreement, Attorney has a conflict of interest under Rule 4–1.9 . However, if Attorney did not obtain such information, Attorney does not have a conflict of interest. Attorney should be aware that Attorney may have obtained confidential information by discussing the matter with other members of the firm despite complete lack of contact with the file or the clients. If a conflict of interest does exist, it may be waived. The former client should only be asked to waive the conflict after full disclosure and the opportunity and encouragement to obtain the advice of independent counsel.