Can a lawyer who once represented a wife take on the husband in their later divorce, when the prior matter was a different family-court case?

Plain-English summary

The inquiring attorney wanted to represent a husband in a divorce against his wife, but had represented the wife three years earlier in a Family Court matter to modify a child-visitation order involving a child from a prior relationship. That child is not the husband's, and the husband was not involved in the earlier case, but the husband and wife have three children in common, and the inquirer thought it likely that the existing custody order for those three children would be incorporated into the divorce decree.

The committee applied Rule 1.9(a), which bars a lawyer from representing a client whose interests are materially adverse to a former client in the same or a substantially related matter without the former client's informed consent, confirmed in writing. Citing Comment [3], the committee explained that matters are substantially related if they involve the same transaction or legal dispute, or if a reasonable lawyer would conclude there is otherwise a substantial risk that confidential factual information normally obtained in the prior representation would materially advance the present client's position. The two matters here were not the same dispute, so the analysis turned on that risk test.

The committee emphasized that the test is not whether the lawyer actually obtained useful confidential information, but whether a reasonable lawyer would see a substantial risk that a competent lawyer handling the prior matter would normally have gained such information; the test presumes possession of confidences based on the nature of the services provided. It observed that a lawyer who handled the wife's visitation matter would normally have learned things like her financial resources, the child's home life, and her parenting skills, which could be relevant in the divorce. But it held the inquiry too factually thin to decide: whether the matters are substantially related requires a more detailed description of both matters. If the wife's parenting ability or finances were issues in the prior matter, or other issues would normally have prompted a competent lawyer to seek confidential information now useful against her, the matters would be substantially related and consent would be required.

The committee added that regardless of whether the matters are substantially related, Rule 1.9(c) independently bars the inquirer from using the former client's confidential information to her disadvantage (except as permitted for a current client or when generally known) and from revealing information protected by Rule 1.6.

In practice

The opinion holds that, under Rule 1.9 as it stood at the time, a lawyer may oppose a former client in a different matter only after determining whether the matters are substantially related, and if they are, obtaining informed consent confirmed in writing. The committee framed the substantial-relationship inquiry as the controlling question and made it fact-intensive: it turns on whether a reasonable lawyer would perceive a substantial risk that confidential information normally obtained in the prior representation could materially advance the new client's position, not on whether the lawyer actually possesses such information. Because it had only a skeletal version of the facts, the committee declined to resolve the specific question and instead supplied the test. It also noted that Rule 1.9(c)'s bars on using or revealing the former client's confidences apply regardless of the substantial-relationship outcome.

Common questions

Q: When is a new matter "substantially related" to a former client's matter?

A: The committee held matters are substantially related if they involve the same transaction or legal dispute, or if a reasonable lawyer would conclude there is a substantial risk that confidential information normally obtained in the prior matter would materially advance the new client's position (Comment [3] to Rule 1.9).

Q: Does it matter whether I actually learned anything useful in the prior case?

A: No. The committee emphasized the test presumes the lawyer has confidential information if a reasonable lawyer would see a substantial risk that a typical lawyer handling that prior matter would normally have acquired it, based on the nature of the services provided.

Q: If the matters are substantially related, can the client just give oral consent?

A: No. Rule 1.9(a) requires informed consent confirmed in writing; the committee quoted the Rule 1.0(e) and 1.0(j) definitions of "confirmed in writing" and "informed consent."

Q: Even if the matters are not related, can I use what I learned about the former client?

A: No. The committee held Rule 1.9(c) independently bars using the former client's confidential information to her disadvantage or revealing information protected by Rule 1.6, regardless of the substantial-relationship analysis.

Background and rules framework

The opinion interprets New York Rule 1.9(a) (duties to former clients in substantially related matters) and Rule 1.9(c) (use and disclosure of a former client's confidential information), corresponding to ABA Model Rule 1.9, together with the substantial-relationship standard in Comment [3] and the Rule 1.0(e) and (j) definitions of "confirmed in writing" and "informed consent."

Citations and references

Rules of Professional Conduct:

• MR 1.9 / NY Rule 1.9(a): no representation materially adverse to a former client in a substantially related matter without informed written consent
• NY Rule 1.9(c): no use or disclosure of a former client's confidential information
• NY Rule 1.0(e), 1.0(j): definitions of "confirmed in writing" and "informed consent"

See also

• NY State Bar Ethics Op. 876: Conflicts When a Lawyer Is Associated With Two Firms
• NY State Bar Ethics Op. 895: Spousal Conflicts of Interest
• NY State Bar Ethics Op. 890: Disqualification of Spouses Practicing in Different Firms

Source

• Landing page: https://nysba.org/ethics-opinion-871/