After jointly representing a married couple for years, can a North Carolina lawyer (or the lawyer's firm) represent one spouse against the other in the divorce, or prepare a new will for one spouse?

Plain-English summary

A lawyer jointly represented a husband and wife for over fifteen years: wills, the estate of the wife's mother, the son's traffic matters, three real property purchases, and advice on a contemplated joint bankruptcy. Two years after the last matter, the couple separated, and the husband asked the lawyer to handle the dissolution against the wife. The committee holds the lawyer may not, under Rule 1.9(a), unless the wife gives informed consent.

The opinion affirms RPC 32 (1989), which reached the same result, and adds the analysis RPC 32 lacked. Rule 1.9(a) bars representing a person in the same or a substantially related matter materially adverse to a former client without the former client's consent. The spouses' interests in the domestic action are obviously adverse; the harder question is the substantial relationship. Per comment [3] to Rule 1.9, matters are substantially related if they involve the same transaction or dispute, or if there is a substantial risk that information normally obtained in the prior representation would materially advance the client's position in the new matter, and the former client need not reveal the information to establish that risk. Because a domestic dissolution is a comprehensive reorganization of the spouses' economic affairs, confidential financial information from the prior joint representation may materially advance one spouse's position. The committee sets out four factors to weigh: the nature of the prior representations (including sensitive family or serious financial matters such as a contemplated bankruptcy), their number and frequency, the passage of time, and the substance of the confidential information received. It emphasizes loyalty as well as confidences, places the burden on the lawyer to show no substantial relationship, and directs the lawyer to err toward declining when it is unclear. On these facts, the substantial relationship exists and the representation would violate Rule 1.9(a) absent the wife's consent.

Inquiry #2 applies Rule 1.10(a): the lawyer's conflict is imputed to the whole firm, so another firm lawyer may represent the husband only with the wife's informed consent. Inquiry #3 addresses a new will or estate plan for the husband: the prior joint reciprocal wills are the "same matter," but once the couple executes an agreement waiving claims against each other's estates, or they divorce, the material adversity required for Rule 1.9 disqualification is gone, so the lawyer or firm may prepare the new estate plan (citing, by contrast, RPC 229, where each spouse had agreed not to change the plan without informing the other).

In practice

Under the North Carolina rules as they stood at the time of the opinion, the committee holds that prior joint representation of spouses on their financial and family affairs is ordinarily substantially related to a later domestic action between them, so Rule 1.9(a) bars representing one spouse against the other without the former client's informed consent. Per the opinion, the lawyer carries the burden of showing the prior matters were not substantially related, weighing the nature of the prior representations, their number and frequency, the passage of time, and the substance of the confidential information received, and must err toward declining when the question is unclear.

The opinion holds the conflict is imputed firmwide under Rule 1.10(a), so no firm lawyer may take the matter without the other spouse's informed consent. For a new will or estate plan for one spouse, the opinion treats the prior joint reciprocal wills as the same matter but holds the disqualifying adversity disappears once a separation agreement waiving estate claims is executed or a divorce is entered, allowing the lawyer or firm to prepare the new plan.

Common questions

Q: Can a North Carolina lawyer who represented both spouses handle the divorce for one of them?

A: Generally no without consent. Opinion #1 holds the prior joint representation on financial and family matters is substantially related to the domestic action under Rule 1.9(a), so the lawyer may not represent one spouse against the other unless the other spouse gives informed consent.

Q: What factors decide whether the prior work is "substantially related" to the divorce?

A: The opinion lists four: the nature of the prior representations (including sensitive family or serious financial matters), their number and frequency, the passage of time since the last one, and the substance of the confidential information the lawyer received.

Q: Can a different lawyer in the same firm take the case instead?

A: No, absent consent. Opinion #2 holds the conflict is imputed to all firm lawyers under Rule 1.10(a), so another firm lawyer may represent the spouse only with the other spouse's informed consent.

Q: Can the lawyer prepare a new will for one spouse?

A: Yes, once the adversity is gone. Opinion #3 holds the lawyer or firm may prepare a new estate plan for one spouse after a separation agreement waiving estate claims, the other spouse's written consent, or a divorce, because the Rule 1.9 material adversity no longer exists.

Background and rules framework

The opinion interprets the former-client conflict rules. Rule 1.9(a) (Model Rule 1.9) bars representing a person in the same or a substantially related matter materially adverse to a former client without informed consent; comment [3] defines "substantially related" and explains the former client need not reveal the information to show the risk. Rule 1.10(a) (Model Rule 1.10) imputes one lawyer's conflict to the firm. Rule 1.7, comment [1] (Model Rule 1.7) supplies the loyalty principle the committee invokes alongside the confidentiality concern.

The committee affirms and elaborates RPC 32 (1989) and distinguishes RPC 229 (1996) on the estate-plan question.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / NC Rule 1.9(a) and cmt. [3] (duties to former clients; substantial relationship)
• Model Rule 1.10 / NC Rule 1.10(a) (imputation of conflicts)
• Model Rule 1.7 / NC Rule 1.7, cmt. [1] (loyalty to clients)

Other opinions cited:

• RPC 32 (1989): a lawyer who jointly represented spouses has a conflict in representing the husband against the wife in alimony and equitable distribution.
• RPC 229 (1996): a lawyer who jointly prepared an estate plan may not prepare a codicil for one spouse where each agreed not to change the plan without informing the other.

See also

• Alabama Op. 1990-03: Representing a Husband in Divorce After the Wife in an Estate Matter
• Colorado Bar Op. 47: Dual Representation in Dissolution of Marriage
• CA COPRAC Op. 1998-152: Imputed Knowledge and Former-Client Consent

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2015-formal-ethics-opinion-8/

Original opinion text

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

Inquiry #1:

Lawyer A is a partner in ABC Law Firm. Lawyer A represented Husband and Wife jointly for over 15 years. During this time, Lawyer A prepared wills for Husband and Wife, represented the estate of Wife’s mother, represented the couple’s son on several traffic citations, represented the couple on the purchase of three parcels of real property, and advised the couple on the filing of a joint bankruptcy petition (which was not filed). Lawyer A has not represented Husband and Wife on any matter in two years.

Husband and Wife are having marital difficulties and have separated. Husband has asked Lawyer A to represent him on all matters related to the dissolution of the marriage.

May Lawyer A represent Husband in the domestic action against Wife?1

Opinion #1:

No, Lawyer A has a conflict of interest under Rule 1.9(a) and may not represent Husband in the domestic action unless Wife gives informed consent.

In RPC 32 (1989), the Ethics Committee considered an inquiry essentially the same as the current inquiry and ruled that the lawyer had a conflict of interest in representing the husband against the wife in alimony and equitable distribution proceedings. The opinion holds that it is a conflict because of the nature of the prior representations and the information received by the lawyer:

[t]hese [prior representations] all require or involve communication concerning property, income, and matters relevant to the spouses’ financial circumstances so that Lawyer A will necessarily have received confidential information relevant to the pending proceedings.

RPC 32.

The Ethics Committee affirms the holding in RPC 32; however, the opinion provides little analysis of why representation of a husband and wife may disqualify a lawyer from the subsequent representation of one spouse in the legal actions attendant to a domestic dissolution. Because this situation occurs frequently—especially in small communities where there are a limited number of lawyers—the committee concluded that more explicit guidance should be provided.

Rule 1.9(a) states that a lawyer who has formerly represented a client in a matter is prohibited from representing 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 gives informed consent. Obviously, Husband’s and Wife’s interests in the domestic action are materially adverse. However, whether the domestic action is the same or substantially related to the prior representations of Husband and Wife by Lawyer A is more difficult to determine.

Comment [3] to Rule 1.9 states that matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” As further noted in comment [3],

[a] former client is not required to reveal the information learned by the lawyer to establish a substantial risk that the lawyer has information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

A “domestic dissolution” or “domestic action” is essentially a winding-up and comprehensive reorganization of the economic affairs of a husband and a wife. The legal representation of either spouse necessitates an examination of the financial affairs of both spouses. Confidential information from a prior representation relative to the financial interests of the other spouse may materially advance a client’s position in the domestic dissolution.

To determine whether there is a disqualifying “substantial relationship” conflict when a lawyer who previously represented spouses proposes to represent one spouse in a domestic action, the lawyer must exercise discretion in the thoughtful and thorough analysis of the following: (1) the nature of prior representations, including an examination of whether any representation involved sensitive family issues or serious financial matters (e.g., representation on a contemplated bankruptcy); (2) the number and frequency of the prior representations; (3) the passage of time since the last representation;2 and (4) the substance of the confidential information received by the lawyer during any of the representations.

In addition to the protection of confidences, loyalty is an essential element of a lawyer’s relationship to a client. See Rule 1.7, Cmt. [1]. There are few situations in which a former client will feel more acutely that this loyalty has been compromised than when a marriage is dissolving and a lawyer who was considered the “family lawyer” takes the side of one spouse. For this reason, the lawyer must consider the totality of the circumstances and has the burden of demonstrating that prior representations of the husband and wife were not substantially related to the domestic dissolution. When it is unclear whether there is a substantial relationship between the prior representations and the current one, the lawyer must err on the side of declining to represent one spouse unless the other spouse gives informed consent.

In light of the number of prior representations over a number of years, the serious and sensitive financial interests and personal issues addressed in the prior representations, the limited passage of time since the last representation, and the relevant confidential information received during the prior representations of Husband and Wife, there is a substantial relationship between the prior representations and current representation of Husband in the domestic action. Therefore, the proposed representation of Husband violates Rule 1.9(a). Accordingly, unless Wife gives her informed consent, Lawyer A has a conflict of interest and may not undertake representation of Husband.

Inquiry #2:

May another lawyer in ABC Law Firm represent Husband in the domestic matter?

Opinion #2:

No, if Lawyer A has a conflict of interest, that conflict is imputed to all of the other lawyers in the firm. Rule 1.10(a). Another lawyer in the firm may represent Husband only with the informed consent of Wife.

Inquiry #3:

Lawyer A also previously represented Husband and Wife jointly on the preparation of reciprocal wills. May Lawyer A, or another lawyer in his firm, prepare a new will/estate plan for Husband?

Opinion #3:

Yes, if there is a separation agreement between Husband and Wife that authorizes each spouse to prepare a new estate plan, the wife gives informed consent confirmed in writing, or an order of divorce has been entered. Cf. RPC 229 (1996)(lawyer who jointly represented husband and wife on estate plan may not prepare codicil to the will of one spouse without knowledge of the other if each spouse agreed not to change estate plan without informing other spouse).

As noted in Opinion #1, Rule 1.9(a) prohibits a lawyer who has represented a client in a matter from representing another client in the same or a substantially related matter in which the new client’s interests are materially adverse to those of the former client unless the former client consents. Lawyer A’s prior representation of Husband and Wife on the preparation of reciprocal wills constitutes the same matter as the preparation of a new will for Husband. However, once the couple has executed an agreement to waive their claims against each other’s estates or they are divorced, the element of material adversity required for disqualification under Rule 1.9 is no longer present.

Endnotes

1. This opinion applies to all domestic partner relationships.

2. See Rule 1.9, Comment [3]: “[i]nformation acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related.”