Can a lawyer who represented one spouse in a divorce later represent the other spouse to modify the decree?

Plain-English summary

The Committee was asked whether an attorney who had represented a wife in an irreconcilable-differences divorce could later represent the former husband in a proceeding to modify the child support provisions of the original decree.

The opinion applies Rule 1.9, which bars a lawyer who formerly represented a client from later representing another in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client consents after consultation. The opinion concludes that representing the former husband, against the former wife the lawyer once represented, would violate Rule 1.9.

In practice

Under this opinion, a lawyer who represented one spouse in a divorce cannot switch sides to represent the other spouse in a later proceeding to modify the decree's child support terms. The opinion applies Rule 1.9 and treats the modification proceeding as a matter adverse to the former client arising from the same representation, absent the former client's consent.

Common questions

Q: I represented the wife in the divorce; can I now represent the ex-husband to lower child support?

A: No. The opinion concludes that representing the former husband against the former wife in a modification proceeding violates Rule 1.9.

Q: Could the former client consent to the new representation?

A: Rule 1.9, as quoted in the opinion, allows the later representation only if the former client consents after consultation. The opinion finds a violation on the facts presented, where no such consent is described.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.9 (duties to former clients; Model Rule 1.9), which prohibits representing a new client in the same or a substantially related matter materially adverse to a former client absent consent, and bars using information from the prior representation to the former client's disadvantage except as Rule 1.6 (confidentiality; Model Rule 1.6) would permit.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / MS RPC 1.9 (duties to a former client; substantially related matter)
• MR 1.6 / MS RPC 1.6 (confidentiality, cross-referenced in Rule 1.9)

See also

• MS Bar Ethics Op. 80: One Lawyer for Both Spouses in a No-Fault Divorce
• MS Bar Ethics Op. 106: Suing a Former Client

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/68/
• Original PDF: https://www.msbar.org/media/1086/et_op_68-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 68

OF THE MISSISSIPPI BAR

RENDERED January 04, 1982

AMENDED April 06, 2013

CONFLICT OF INTEREST - Attorney who has represented one spouse in irreconcilable differences divorce may not subsequently represent the other spouse against the other on Petition to modify divorce.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion regarding whether or not an attorney who had represented a wife in an irreconcilable divorce could subsequently represent the former husband in a proceeding to modify the child support provisions contained in the original decree.

Rule 1.9 of the Mississippi Rules of Professional Conduct (MRPC) provides that:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same of a substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

In the opinion of the Committee, the representation of the former husband by the same attorney who represented the former wife would be in violation of Rule 1.9, MRPC.