If a lawyer once advised a married couple about child custody, can the lawyer later represent the wife in their divorce?

Plain-English summary

The committee was asked whether an attorney who had previously advised a couple about child custody could later represent the wife in a dissolution action. It answered no.

The committee applied Rule 1.9 (Conflict of Interest: Former Client), which bars a lawyer who formerly represented a client in a matter from later representing another person in the same or a substantially related matter, where that person's interests are materially adverse to the former client's, unless the former client consents after consultation. The committee treated the prior custody advice and the divorce as falling within that prohibition.

It concluded that the attorney cannot properly represent the wife without first obtaining the husband's written consent after a meaningful disclosure that the attorney may have obtained knowledge in the prior representation that is relevant or significant in the dissolution.

Currency note

This opinion was issued in 1990, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer who advised both spouses on custody later take one spouse's side in the divorce?

A: The opinion concludes no, not unless the other spouse consents in writing after consultation, because Rule 1.9 treats the custody advice and the divorce as substantially related.

Q: What does the lawyer have to disclose before getting consent?

A: The opinion requires meaningful disclosure of the possibility that the lawyer obtained knowledge in the prior representation that is relevant or significant in the dissolution.

Q: Is oral consent enough?

A: The opinion calls for the former client's written consent after that disclosure.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.9 (Conflict of Interest: Former Client; Model Rule 1.9), which prohibits later adverse representation in the same or a substantially related matter absent the former client's informed consent.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.9 (former-client conflicts) / Model Rule 1.9

See also

• State Bar of Montana Ethics Op. 940112: Former-Client Consent Required
• State Bar of Montana Ethics Op. 951026: Firm Conflict From a Former Client

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/901116.pdf

Original opinion text

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

Ethics Opinion
QUESTION PRESENTED: May an attorney, who previously advised a couple about child custody, represent the wife in a subsequent divorce action?

ANSWER: No.

ANALYSIS: This situation is covered by the Rules of Professional Conduct Rule 1.9, Conflict of Interest: Former Client which provides:

A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation. . . ."

The Attorney cannot properly represent the wife without first obtaining the written consent from the husband after having provided a meaningful disclosure of the possibility that the attorney may have obtained knowledge from the prior representation which is relevant or significant in the dissolution.

THIS OPINION IS ADVISORY ONLY