Can a lawyer who once handled a woman's personal injury claim later represent her husband in the divorce she has filed against her?

Plain-English summary

At least two years earlier, Lawyer A had represented a woman and settled her personal-injury claim, with no contact since. The woman, through different counsel, then filed for divorce, and her husband asked Lawyer A to represent him. The wife's divorce lawyer objected that Lawyer A should not represent the husband because of the prior representation. Lawyer A asked the Committee whether he could take the husband's case.

The opinion answered yes. Citing its prior Opinions Nos. 90 and 106 and Rule 1.9(b), the Committee restated the controlling principle: a lawyer may represent a new client against a former client in an unrelated matter where there is no substantial relationship between the former and present representations and no confidences or secrets of the former client are used against her. The Committee found no substantial relationship between a personal-injury action and a divorce two years later, and no reasonable probability that Lawyer A held confidences of the wife usable against her in the divorce. It therefore concluded Lawyer A could represent the husband.

The opinion expressly cautioned that it did not address simultaneous representation of adverse interests, or a lawyer switching sides to proceed against a former client in the same matter; those situations require a separate analysis.

In practice

Under this opinion, a Mississippi lawyer may take a matter directly adverse to a former client when the new matter is unrelated to the prior representation and the lawyer holds no confidences usable against the former client, the Rule 1.9 test the Committee applies. The opinion limits its holding to successive (not simultaneous) representation and does not reach a lawyer attempting to change sides in the same matter, which it says calls for a separate analysis.

Common questions

Q: Can a lawyer take a case against someone he used to represent?

A: Per this opinion, yes, in an unrelated matter where there is no substantial relationship to the prior representation and no confidences of the former client could be used against her.

Q: Does a prior personal-injury case bar representing the ex-client's spouse in a divorce?

A: No, on these facts. The opinion found no substantial relationship between a settled personal-injury claim and a divorce two years later.

Q: Does this opinion cover representing opposing clients at the same time?

A: No. The opinion expressly cautions it does not address simultaneous representation of adverse interests or switching sides in the same matter.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.9 (duties to former clients, the analog of Model Rule 1.9), specifically Rule 1.9(b), and draws its substantial-relationship and confidences test from the Committee's earlier Opinions Nos. 90 (1984) and 106 (1985).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Mississippi Rule 1.9: duties to former clients (Rule 1.9(b) on use of former-client information).

Other opinions cited:

• Mississippi Ethics Opinion No. 90 (January 19, 1984): substantial-relationship and privileged-information framework for former-client conflicts.
• Mississippi Ethics Opinion No. 106 (September 13, 1985): applying the same controlling principles.

See also

• MS Bar Ethics Op. 131: Representing a Former Adversary
• MS Bar Ethics Op. 151: Representing a Divorce Client Again
• MS Bar Ethics Op. 166: No Duty to a Former Client

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/128/
• Original PDF: https://www.msbar.org/media/1033/et_op_128-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 128

OF THE MISSISSIPPI BAR

RENDERED December 05, 1986

AMENDED April 06, 2013

CONFLICT OF INTEREST - Where there is no substantial relationship between present representation against former client and representation of former client and where the attorney does not have knowledge of confidences and secrets which could be used against former client in present representation, a lawyer may ethically represent husband sued for divorce by wife who was formerly represented by lawyer concerning unrelated personal injury claim.

The Ethics Committee of The Mississippi Bar has been asked to render its opinion on the following situation.

At least two years ago, Lawyer A represented a woman and settled her personal injury claim. Lawyer A has had no contact with the woman whatsoever since the date of the settlement. The woman, through another attorney, has now filed a complaint for divorce, and the woman's husband has contacted Lawyer A requesting that Lawyer A represent him in the action.

The attorney now representing the woman in the divorce action has advised Lawyer A that he did not believe that Lawyer A should represent the husband because Lawyer A had previously represented the wife in the personal injury case.

Thus, Lawyer A now asks the Committee whether he may ethically represent the husband under these circumstances.

The controlling ethical principles are reviewed in detail in two recent opinions by this Committee, Opinion Nos. 90 (Jan. 19, 1984) and 106 (Sept. 13, 1985), and need not be repeated at length here. The fact situation here presents the questions of whether an attorney may represent an adverse client against a former client in an unrelated matter. The controlling ethical principle is that where there is no substantial relationship between the former representation and the present representation and no confidences or secrets of the former client from the former representation are used against the present representation, the attorney may ethically represent a new client against a former client in an unrelated matter. See Rule 1.9(b) of the Mississippi Rules of Professional Conduct.

Here, the Committee can discern no substantial relationship between representing the wife in a personal injury action and then representing the husband in a divorce action two years later. Likewise, based upon this request, the Committee can foresee no reasonable probability that the requesting attorney would possess confidences and secrets of the wife which could be utilized against her in the present action. Therefore, the Committee concludes that on these facts Lawyer A may ethically represent the husband in the subsequent divorce action filed by the wife.

The Committee cautions that this opinion does not deal with the question of simultaneously representing adverse interests. This is governed by a separate analysis. Likewise, this opinion does not address the situation of a lawyer's attempting to change sides in a representation to proceed in the same matter against the former client.