Can a lawyer who did joint estate planning for a married couple later represent one spouse against the other in their divorce?

Plain-English summary

A lawyer previously represented both a wife and a husband in family estate-planning matters. The wife now asks the lawyer to represent her in the dissolution of the marriage. Neither spouse is still a current client. The opinion addresses whether the lawyer may undertake the representation of the wife against the husband in the dissolution, and answers "see discussion."

The opinion applies Oregon RPC 1.9 (duties to former clients), with the wife as a potential current client and the husband as a former client. The question is whether the dissolution is the "same or a substantially related matter" as the estate planning. Drawing on OSB Formal Ethics Op. Nos. 2005-11 and 2005-17, the opinion frames substantial relationship as either a matter-specific conflict or an information-specific conflict. If either exists, the lawyer may proceed only with both spouses' informed consent confirmed in writing; if neither exists, the lawyer may proceed without either's consent.

On the limited facts, the opinion sees no information-specific conflict: the lawyer would not hold information about the husband that the wife does not already know or have access to, noting that there is no privilege between jointly represented clients who have a falling-out (OEC 503(4)(e); In re Brandsness). It also concludes that estate planning and a marital dissolution are not, without more, the same matter (Portland General Electric Co. v. Duncan, Weinberg). The key question is whether the dissolution would work to the husband's injury in connection with the estate planning. The opinion explains that even though a divorce generally revokes will provisions favoring a former spouse under ORS 112.315, that revocation does not create a conflict unless the parties were legally bound not to revoke or change their wills (citing ABA Formal Ethics Op. No. 05-434). But if the spouses had bound themselves not to change their wills, or if representing the wife would require the lawyer to wrest control of business or estate-planning entities the lawyer formed for both spouses away from the husband, a matter-specific former-client conflict would exist (In re Brandsness), and the lawyer could not proceed without both spouses' informed consent confirmed in writing.

In practice

The opinion holds that the availability of the representation turns on the Oregon RPC 1.9 substantial-relationship analysis, split into information-specific and matter-specific conflicts. Per the opinion, where the former joint clients have no protected information as between themselves and the new matter does not undermine entities or will commitments from the prior representation, no conflict bars the divorce representation; where will commitments or entity control are at stake, both spouses' informed consent confirmed in writing is required. Verify the current text of Oregon RPC 1.9 before relying on any specific point.

Common questions

Q: Can a lawyer who handled a couple's estate plan represent one spouse in their divorce?

A: Sometimes without consent. The opinion concludes the lawyer may proceed if the divorce is neither a matter-specific nor an information-specific former-client conflict under Oregon RPC 1.9; otherwise both spouses must give informed consent confirmed in writing.

Q: Does the lawyer have a confidentiality problem from the joint estate planning?

A: Not on these limited facts. The opinion reasons there is no information-specific conflict because there is no privilege between jointly represented clients who have a falling-out, and the wife already knows or can access the relevant information.

Q: When does the divorce become a disqualifying conflict?

A: When it injures the husband's interests from the prior work. The opinion identifies a binding agreement not to change the wills, or the need to wrest control of business or estate-planning entities the lawyer formed for both, as creating a matter-specific former-client conflict.

Background and rules framework

The opinion interprets Oregon RPC 1.9 (conflicts involving former clients), corresponding to Model Rule 1.9, together with Oregon RPC 1.6 (confidentiality) and the Oregon RPC 1.0(b) and (g) definitions of "confirmed in writing" and "informed consent." It distinguishes matter-specific from information-specific former-client conflicts as developed in OSB Formal Ethics Op. Nos. 2005-11 and 2005-17.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.9(a) and (c) / Model Rule 1.9 (duties to former clients)
• Oregon RPC 1.6(a) / Model Rule 1.6 (confidentiality)

Statutes:

• ORS 112.315 (divorce revokes will provisions favoring a former spouse)
• OEC 503(4)(e) (no privilege between jointly represented clients in a later dispute)

Cases:

• In re Brandsness, 299 Or 420, 702 P2d 1098 (1985)
• Portland General Electric Co. v. Duncan, Weinberg, Miller & Pembroke, P.C., 162 Or App 265, 986 P2d 35 (1999)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-11 (matter-specific former-client conflict)
• OSB Formal Ethics Op. No. 2005-17 (information-specific former-client conflict)
• ABA Formal Ethics Op. No. 05-434

See also

• OSB Ethics Op. 2005-11: Former-Client Matter-Specific Conflicts
• OSB Ethics Op. 2005-17: Former Client and Use of Confidential Information
• OSB Ethics Op. 2005-86: Representing Husband and Wife

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-148.pdf