I currently represent a husband in an unrelated matter where he shared confidential financial information with me. His wife just called asking me to represent her in divorcing him. Can I take her case? Can I keep representing the husband on his other matters?

Plain-English summary

An attorney asked the panel whether a conflict would arise from representing a client's wife ("W") in a domestic relations matter. The attorney had been representing the husband ("H") on problems between H, his first wife, and his first wife's husband, and H had recently consulted the attorney about changing custody of H's child from a prior marriage, in the course of which the attorney obtained certain confidential financial information from H. Some time later, W called asking the attorney to represent her in a divorce from H. The attorney posed three questions to the panel.

On the first question, whether representing W in a divorce complaint against H would create a conflict, the panel quoted EC 4-5, which bars a lawyer from using information acquired through representing a client to that client's disadvantage or for the lawyer's own purposes without consent after full disclosure, and which directs a lawyer to prevent disclosure of one client's confidences to another and to avoid accepting employment that might require such disclosure. Based on EC 4-5, the panel held that representing W in the described situation would violate the Code of Professional Responsibility. The panel also cited EC 9-6, which requires a lawyer to "strive to avoid not only professional impropriety but also the appearance of impropriety," and took the position that representing either W or H in these circumstances would be improper regardless of whether the information obtained from H was actually relevant to W's divorce complaint.

On the second question, whether it would be proper to continue representing H on his problems with his first wife, the panel found this representation posed no conflict of interest or confidentiality problem and was permissible.

On the third question, whether the attorney could represent H on seeking a custody change for his child from the prior marriage despite the pending divorce action involving W, the panel reasoned that because it had already concluded the attorney could not be involved in W's divorce complaint, the existence of that proceeding was irrelevant to this third question, and it was proper for the attorney to represent H on the custody matter.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct, and it applies the ABA Model Code of Professional Responsibility's Ethical Considerations then in effect. 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: My current client's spouse wants me to represent her in divorcing him, and I already have his confidential financial information from another matter. Can I take her case?

A: No. The opinion holds that representing the spouse would violate the Code, regardless of whether the confidential information actually turns out to be relevant to the divorce.

Q: Does it matter that the information I have from my client isn't actually related to the divorce issues?

A: No, according to this opinion. The panel took the position that representing either spouse in these circumstances would be improper "regardless of whether or not information obtained from H was actually relevant to W's complaint for divorce from H."

Q: Can I keep representing my original client on his unrelated matters after declining to represent his spouse?

A: Yes. The opinion holds that continuing to represent H on his separate first-marriage problems, and on his custody matter regarding a child from a prior marriage, remained proper and posed no conflict.

Background and rules framework

The opinion applies EC 4-5 (protecting client confidences and secrets from use or disclosure) and EC 9-6 (avoiding both professional impropriety and its appearance) of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, to a lawyer approached by the spouse of a current client for representation adverse to that client.

Citations and references

Rules of Professional Conduct:

• RI EC 4-5 (protecting client confidences and secrets from use or disclosure without consent)
• RI EC 9-6 (avoiding professional impropriety and its appearance)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2088-16.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #88-16, REQUEST #17
Issued July 28, 1988

An attorney seeks Panel advice as to whether a conflict would arise from representation of a client who is the wife ("W") in a domestic relations matter. The attorney indicates that he has been representing the husband ("H") with respect to problems between himself, his first wife and his first wife's husband. The attorney also indicates that H recently consulted him with regard to changing custody of H's child by a prior marriage. The attorney advises the Panel that he obtained certain confidential financial information from H in connection with this matter. The attorney explains that some time later W called him asking that he represent her in a divorce from H.

With reference to this fact situation, the attorney poses three questions to the Panel. First, he asks whether a conflict would arise if he undertook representation of W in a complaint for divorce from H.

Ethical Consideration 4-5 provides:

A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes. Likewise, a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another, and no employment should be accepted that might require such disclosure.

Based on this ethical consideration the Panel takes the position that representing W in the situation the attorney has described would constitute a violation of the Code of Professional Responsibility.

Ethical Consideration 9-6 provides in pertinent part that a lawyer must "strive to avoid not only professional impropriety but also the appearance of impropriety." (emphasis supplied).

The Panel takes the position that representation of W or H in the circumstances described would be improper regardless of whether or not information obtained from H was actually relevant to W's complaint for divorce from H.

Second, the attorney asks whether it would be proper to represent H with respect to problems with his first wife. The Panel takes the position that this representation poses no conflict of interest or confidentiality problems and is permissible under the Code of Professional Responsibility.

Third, the attorney asks the Panel whether it would be proper for him to represent H with regard to seeking a change of custody of his child by a prior marriage, notwithstanding the pending divorce action involving W. Since the Panel has taken the position that the attorney may not be involved in W's complaint for divorce from H, the existence of that proceeding would be irrelevant to an analysis of the third query. The Panel takes the position that it is proper for the attorney to represent H with regard to the custody of his child by a prior marriage.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.