After representing a husband in a custody case against his first wife, can the lawyer later represent his second wife in divorcing him?

Plain-English summary

Attorney A represented a husband in a custody proceeding against Wife No. 1. At that time the husband was married to Wife No. 2. After the custody proceeding ended, Wife No. 2 asked Attorney A to represent her in a divorce from the husband. The inquiry asked whether Attorney A could represent Wife No. 2 against the husband, and whether the answer changed if the husband and Wife No. 2 had not been married at the time of the first action.

The opinion concluded that the prior custody proceeding between the husband and Wife No. 1 did not appear to be substantially related to the contemplated divorce between the husband and Wife No. 2, so Attorney A may represent Wife No. 2. Attorney A may not divulge any confidences or secrets of the husband learned during the prior representation, and if A cannot adequately represent Wife No. 2 without revealing them, A must decline the case or, if already retained, withdraw (Rules 5.1(c) and (d)). The opinion added that the husband's marital status at the time of the first action would not, without more, change the answer.

Currency note

This opinion was issued in 1988, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rule 5.1(c) on protecting a former client's confidences and Rule 5.1(d), the substantial-relationship bar) have since been renumbered and revised (the corresponding Model Rules are 1.6 and 1.9). 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 Treat this page as historical context, not current guidance.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: Could the lawyer represent the second wife against the former-client husband?

A: Yes. The opinion concluded the prior custody case was not substantially related to the divorce, so the lawyer may take it.

Q: What duty survived the end of the husband's representation?

A: The opinion concluded the lawyer may not reveal the husband's confidences or secrets learned during the prior representation.

Q: What if the lawyer could not represent the wife without using those confidences?

A: The opinion concluded the lawyer must then decline the case, or withdraw if already retained.

Background and rules framework

The opinion applied North Carolina Rule 5.1(d), the substantial-relationship bar for representation adverse to a former client (corresponding to Model Rule 1.9), and Rule 5.1(c), protecting the former client's confidences and secrets (corresponding to Model Rule 1.6). The analysis turned first on whether the prior matter was substantially related to the new one, and then on whether the new representation could proceed without using the former client's confidences.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(d) (substantially related former matters)
• North Carolina Rule 5.1(c) (protecting a former client's confidences and secrets)
• MR 1.9 (duties to former clients); MR 1.6 (confidentiality)

See also

• NC Ethics Op. RPC 45: partner represented adverse parties prior to joining firm
• NC Ethics Op. RPC 60: representation of police organization and its members

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-42/

Original opinion text

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

Inquiry:

Attorney A represented Husband in a custody proceeding against Wife No. 1. At the time Husband was married to Wife No. 2. After the conclusion of the custody proceeding, Wife No. 2 asks Attorney A to represent her in obtaining a divorce from Husband.

May Attorney A represent Wife No. 2 against Husband? Would the answer change if Husband and Wife No. 2 had not been married at the time of the first action between Husband and Wife No. 1?

Opinion:

The prior custody proceeding between Husband and Wife No. 1 does not appear to be substantially related to the contemplated divorce action between Husband and Wife No. 2 and therefore Attorney A may represent Wife No. 2. Attorney A may not divulge any confidences or secrets of Husband which Attorney learned during his prior representation, however. If Attorney A cannot adequately represent Wife No. 2 without revealing these confidences or secrets, Attorney A must decline to represent Wife No. 2, or, if he has already taken the case, must withdraw. See Rules 5.1(c) and (d).

Husband's marital status at the time of his action against Wife No. 1 would not, without more, affect the answer to Attorney A's inquiry.