My office represented a husband and wife in real estate deals. Can I now represent the wife in a divorce against the husband?

Plain-English summary

The inquiring attorney represented a wife in a divorce proceeding and filed the necessary pleading, after which the wife decided not to pursue the divorce. In the interim, the attorney's office represented the wife and husband in a few real estate transactions; the attorney reports the law office interacted only with the wife. The wife now wishes to pursue the divorce again and seeks representation from the inquiring attorney, who asked whether he may represent her.

The panel said Rule 1.9 ("Conflict of Interest: Former Client") governs, and quoted Rule 1.9(a)-(b): a lawyer who formerly represented a client shall not thereafter represent another person in the same or a substantially related matter materially adverse to the former client unless the former client consents after consultation, or use information relating to the representation to the former client's disadvantage except as Rules 1.6 or 3.3 permit or when it has become generally known. The panel said it could not determine from the facts whether the matters are substantially related.

Assuming the matters are substantially related, the panel advised that the inquiring attorney should obtain the husband's consent, preferably in writing, and should not rely on the wife's statement that the husband has consented. It added, per the comments to Rule 1.9, that information acquired in representing a client may not later be used to the husband's disadvantage unless an express exception in Rule 1.9(b) applies. The attorney may represent the wife in the divorce so long as the attorney receives the husband's informed consent after consultation and does not use information from the prior representation to the husband's disadvantage.

In practice

Under this opinion, a lawyer whose office previously represented both spouses in real estate transactions faces a Rule 1.9 question in later representing the wife in a divorce against the husband. The opinion holds that whether the matters are substantially related is undetermined on the facts, and that if they are, the lawyer needs the husband's own informed consent after consultation (preferably written, not relayed through the wife) and may not use information from the prior representation to the husband's disadvantage.

Common questions

Q: Can I represent the wife in the divorce after representing both spouses in real estate?

A: Per the opinion, yes if the matters are not substantially related, or if they are, only with the husband's informed consent after consultation.

Q: Can I rely on the wife telling me the husband consents?

A: Per the opinion, no; the attorney should obtain the husband's consent directly, preferably in writing, and should not rely on the wife's statement that the husband has consented.

Q: What if I can't tell whether the matters are substantially related?

A: Per the opinion, the panel itself could not determine that from the facts and advised proceeding as if they are related, meaning obtain the husband's consent and do not use his information to his disadvantage.

Background and rules framework

The opinion applies Rhode Island Rule 1.9 (duties to former clients), corresponding to Model Rule 1.9, and refers to Rules 1.6 (confidentiality) and 3.3 (candor toward the tribunal) as the exceptions in Rule 1.9(b). The panel applied Rule 1.9(a)'s substantial-relationship and consent requirements and Rule 1.9(b)'s bar on adverse use of a former client's information, and, unable to resolve the relatedness question on the facts, advised obtaining the husband's consent.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• MR 1.6 (confidentiality of information)
• MR 3.3 (candor toward the tribunal)
• RI RPC 1.9(a), 1.9(b); comments to Rule 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-59: Representing a Wife in Divorce After the Husband's Corporations
• RI EAP Op. 92-76: Suing a Former-Client Borrower on Behalf of the Seller
• RI EAP Op. 92-31: Former-Client Objection Turns on the Substantial-Relationship Test

Currency note

This opinion was issued in 1992 (Opinion 92-77, issued November 18, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.9 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended Rule 1.9 (duties to former clients). 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 mentioned here.

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%2092-77.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-77, Request #305
Issued November 18, 1992

An attorney seeks Panel advice regarding the ethical propriety of continuing to represent a client in the following circumstances. The attorney represented a wife in a divorce proceeding. The attorney filed the necessary pleading with the Court. Subsequently, the wife decided not to pursue the divorce. In the interim, the attorney's office represented the wife and husband in a few real estate transactions. The inquiring attorney informs the Panel that the law office interacted only with the wife. The wife would like to pursue the divorce against her husband again and seeks representation from the inquiring attorney. The attorney asks whether the attorney may represent the wife in the divorce.

The Panel believes that Rule 1.9 "Conflict of Interest: Former Client" governs this inquiry. The Rule states that:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent 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 consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.

The Panel is unable to determine whether or not the matters are substantially related from the facts given. Assuming that the matters are substantially related, then the inquiring attorney should obtain the husband's consent, preferably in writing, and should not rely on the wife's statement that the husband has consented to the representation in the divorce proceeding.

As indicated by the comments to Rule 1.9, information acquired by the attorney in the course of the representation of a client may not be subsequently used by the lawyer to the disadvantage of the husband, unless such use is permitted by an express exception in Rule 1.9(b). In this matter, the attorney may represent the wife in the divorce proceedings as long as the attorney receives informed consent after consultation by the husband and that the attorney does not use information gained from the prior representation to the disadvantage of the husband.