If opposing counsel in a divorce claims my firm once represented the other spouse, must I withdraw when no clear attorney-client relationship with that spouse was ever formed?

Plain-English summary

A lawyer (the requesting attorney) represented John Doe in a post-judgment spousal-support dispute. Earlier, another lawyer in the same firm, Attorney A, had advised John Doe by phone about a proposed employment contract; the firm's billing showed a single phone call from John's wife, Jane Doe, but nothing about its substance. Attorney A later helped John with their minor child's traffic citation. Jane filed for divorce (neither spouse was represented by the firm), and after the divorce became final John retained the requesting attorney on the employment contract and other matters. When the requesting attorney appeared for John in the later spousal-support proceeding, Jane's lawyer asserted a conflict, claiming Attorney A had represented both spouses on the employment contract, which Jane said would be the focus of the support dispute.

The committee framed the only real question as whether Jane Doe had in fact ever been Attorney A's client. Because Jane's interests and the disputed employment contract were obviously related to the support fight, "substantially related" was not the issue; if Jane had been a client, Rule 1.9 would bar the representation. The committee examined three possible bases for a relationship: an express agreement, a reasonable expectation of representation, and representation implied from the family circumstances. It found no facts supporting any of them. It noted North Dakota Supreme Court precedent (McKechnie, Hoffman, Moen, Stormon) holding that an attorney-client relationship can be implied from the parties' conduct or from a putative client's reasonable belief that the lawyer is protecting their interest, but said the recognized situations require the lawyer to claim to represent the person or to act so as to reasonably cause that belief, and no such facts appeared.

The committee stressed that it does not act as a fact finder. Whether an attorney-client relationship exists is itself a fact question; the committee assumed the facts as presented by the requesting attorney, with no contradictory facts offered by opposing counsel. On that record, and consistent with SBAND Opinion 01-01, it concluded that no conflict could be presumed or inferred and the requesting attorney was not required to withdraw.

In practice

This opinion applies the version of North Dakota's Rules of Professional Conduct in force in 2005, which North Dakota materially revised effective August 1, 2006; the analysis reflects the earlier rule. Under that rule, the committee held that an opposing lawyer's assertion of a former-client conflict does not, by itself, require withdrawal; the question is whether the person claimed to be a former client actually formed an attorney-client relationship with the firm, which can rest on an express agreement, a reasonable expectation, or conduct implying representation. The committee held that, on the facts presented and absent any contradictory facts, none of those bases was shown, so withdrawal was not required. The committee also reaffirmed Opinion 00-01's limit: the near-automatic conflict it described for representing one spouse arises where the firm previously represented the opposing spouse on a substantially related matter, not merely on any matter affecting the family's finances.

Common questions

Q: Does opposing counsel's say-so that I once represented the other spouse create a disqualifying conflict?

A: No, not by itself. The committee said the sole issue was whether an attorney-client relationship with that spouse was actually formed, and it was given no facts showing one, so withdrawal was not required.

Q: Can an attorney-client relationship form without a contract or a fee?

A: Yes. The committee noted North Dakota Supreme Court cases holding a relationship may be implied from the parties' conduct or from a putative client's reasonable belief the lawyer is protecting their interest, but it found no such facts here.

Q: Does handling a "family" matter automatically conflict me out of the later divorce?

A: No. Relying on Opinion 00-01, the committee said that bar applies where the firm previously represented the opposing spouse on a substantially related matter; absent that, representing one party in the divorce or domestic-relations matter is not precluded.

Q: Does the committee decide whether the relationship existed?

A: No. The committee said it will not act as a fact finder. It assumed the facts as presented by the requesting attorney, with no contradictory facts offered, and answered on that basis.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.7 (Model Rule 1.7, concurrent conflicts) and 1.9 (Model Rule 1.9, duties to former clients) as they stood in 2005. The analysis turns entirely on whether the opposing spouse was ever a client, drawing on North Dakota Supreme Court decisions about when an attorney-client relationship is implied and on the committee's own prior opinions 00-01 (representing one spouse where the firm earlier represented the other) and 01-01 (duties to a potential client). North Dakota revised its Rules of Professional Conduct effective August 1, 2006, so the rule text reflects the earlier version.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / N.D.R. Prof. Conduct 1.9 (duties to former clients)
• Model Rule 1.7 / N.D.R. Prof. Conduct 1.7 (concurrent conflicts of interest)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Cases:

• In re Disciplinary Action Against McKechnie, 2003 ND 22, 656 N.W.2d 661 (existence of an attorney-client relationship is a fact question)
• In re Application for Disciplinary Action Against Hoffman, 2003 ND 161, 670 N.W.2d 500 (relationship presumed where a person reasonably believes a lawyer is protecting their interest)
• Moen v. Thomas, 2001 ND 110, 628 N.W.2d 325 (relationship may be implied; does not depend on a contract or fees)
• Stormon v. Weiss, 65 N.W.2d 475 (N.D. 1954) (relationship may be implied from conduct)

Other opinions cited:

• SBAND Opinion 00-01 (representing one spouse where the firm earlier represented the other)
• SBAND Opinion 01-01 (duties to a potential client; confidentiality)

See also

• SBAND Ethics Op. 05-01: Representing a Plaintiff Against a Former Client
• ABA Formal Op. 492: Prospective-Client Duties
• ABA Formal Op. 90-358: Prospective Client Information

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_05-04.pdf

Original opinion text

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

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE

OPINION NO. 05-04
August 2, 2005

The attorney requesting the opinion asks for this committee to issue an advisory opinion
addressing the question of whether, based upon the claim that the opposing party was a former
client, there is a conflict of interest which requires that he withdraw as attorney for a current client in
a domestic relations matter.

FACTS

Another attorney in the requesting attorney’s firm, Attorney A, was requested by phone to
advise John Doe, a physician, with regard to a proposed employment contract between John Doe and
a medical facility. There were no face to face meetings by Attorney A with any person on that
matter; but the billing indicates a single phone call from the John Doe’s wife, Jane Doe. The request
does not indicate anything about the substance of that phone call.

Jane Doe thereafter filed for divorce; but neither party was represented by any attorney in the
requesting attorney’s firm. Subsequent to commencement of the divorce action, Attorney A was
contacted by phone by John Doe concerning a traffic citation received by his minor child. Although
there were no face to face meetings with any person by Attorney A and no billing, Attorney A did
give John Doe advice by letter and did take some action resulting in a reduced charge and fine.
There was no indication that Attorney A had any contact with Jane Doe on that matter.

Sometime after that matter was concluded John Doe and Jane Doe were divorced in
accordance with their written stipulation.

After the divorce was final, John Doe contacted the requesting attorney and asked that he

represent John Doe as concerns the aforementioned employment contract and the requesting attorney
has since represented John Doe on that and various other matters.

More recently, the requesting attorney made an appearance on John Doe’s behalf in a post
judgment procedure concerning spousal support in the divorce action; and the attorney for Jane Doe
has suggested that the requesting attorney has a conflict of interest based upon Jane Doe’s assertion
that Attorney A represented both John Doe and Jane Doe concerning the aforementioned
employment contract, asserting that “the terms and longevity of that contract were for the financial
well being of this entire family” and that the contract would “most certainly be a focal point of our
upcoming [spousal support] dispute.” The requesting attorney does not reference any specific facts
asserted by Jane Doe in support of her claim that an attorney client relationship was established
between herself and Attorney A.

APPLICABLE RULES

Rule 1.7 of the North Dakota Rules of Professional Conduct addresses conflicts of interest
generally.

Rule 1.9 of the North Dakota Rules of Professional Conduct specifically addresses the
potential of conflicts of interest arising from prior representations. It states:

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

(a) Represent another person in the same matter in which that person's interests are
materially adverse to the interests of the former client; or

(b) Represent another person in 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

(c) Use information relating to the representation to the disadvantage of the former
client in the same or a substantially related matter except as Rule 1.6 would require
or permit with respect to a client.

DISCUSSION

Because the claimed representation of Jane Doe by Attorney A dealt with the negotiation of
the employment contract, and because Jane Doe asserts that such employment contract will be the
“focus of our upcoming [spousal support] dispute”, whether the matters are “substantially related” is
not an issue. Instead, the sole issue is one of whether there was, in fact, prior representation of Jane
Doe by Attorney A was with regard thereto.

In the event Jane Doe’s claimed existence of an attorney client relationship as concerns the
employment contract is accurate, Jane Doe would be a former client; and, pursuant to Rule 1.9(b) of
the North Dakota Rules of Professional Conduct, the requesting attorney would be precluded from
representing John Doe in the pending matter.

It is not clear what is the basis for that assertion. Possible bases for an alleged conflict of
interest include: (1) an express agreement for representation; (2) a reasonable expectation of
representation; or (3) some representation implied from familial circumstances.

Express agreement. The committee has not been provided with any facts which indicate
that there was any express agreement between Attorney A and Jane Doe that an attorney client
relationship was created as concerns the employment contract.

Reasonable expectation of representation. Apart from Jane Doe’s assertion that “the terms
and longevity of that contract were for the financial well being of this entire family”, the committee
has not been provided with any facts which indicate, or from which it might determine, that an
attorney client relationship was created as concerns the employment contract based upon reasonable
expectations of Jane Doe or which could be implied from the conduct of the parties.

However, the North Dakota Supreme Court has several times held that an attorney-client

3

relationship may be implied from the conduct of the parties and/or one’s reasonable expectations.

See, for instance, In re Disciplinary Action Against McKechnie, 2003 ND 22 419, 656 N.W.2d 661,

667 wherein it is provided that:

[] 19] Traditionally, it has been said that the lawyer-client relationship begins when the
client acknowledges the lawyer's capacity to act in his behalf and the lawyer agrees to act for
the benefit and under the control of the client." ABA/BNA Lawyers’ Manual On Professional
Conduct, at 31:101 (2002) ("ABA/BNA Manual "). The existence of an attorney-client
relationship is a fact question, necessarily dependent on the particular circumstances of the
case. Moen v. Thomas, 2001 ND 110, § 13, 628 N.W.2d 325. An attorney-client relationship
may be implied from the conduct of the parties. Stormon v. Weiss, 65 N.W.2d 475, 520
(N.D.1954). "[I]t may arise when a putative client reasonably believes that a particular
lawyer is representing him and the lawyer does not disabuse the individual of this belief."

' ABA/BNA Manual, at 31:101. See also Moen, at { 15. The existence of the relationship does
not depend on an express contract or the payment of fees. Moen, at J 13.

See also, In re Disciplinary Action against Giese, 2003 ND 82 17, 662 N.W.2d 250; Moen

. Thomas, 2001 ND 110, 913, 628 N.W.2d 325; and Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954).

¥. Jnomas,

Furthermore, in the context of Jane Doe’s assertion that “the terms and longevity of that
contract were for the financial well being of this entire family”, it is important to note that the North

Dakota Supreme Court held in the case of In re Application for Disciplinary Action Against

Hoffman, 2003 ND 161, §16, 670 N.W.2d 500, 503-504, that:

[{ 16] An attorney-client relationship can be presumed in situations where a person has a
reasonable belief a lawyer is protecting someone's interest. Restatement (Third) of the Law
Governing Lawyers § 14 cmt. a (2000). The Restatement provides, "the various duties of
Jawyers and clients do not always rise simultaneously." Jd. Even if no formal professional

relationship exists between the client and the attorney, the attorney may still owe a duty to
the prospective client, or third parties. Jd.

Further examination of that case indicates, however, that the formation of an attorney client
relationship on the basis of a reasonable belief that a lawyer is protecting someone's interest is
limited to situations where the attorney claims to be representing such person or the attorney’s
conduct reasonably causes a third party to believe the attorney is acting on behalf of that person. No
such facts appear here.

As indicated in the excerpt from the McKechnie case, supra., “[t]he existence of an attorney-
client relationship is a fact question, necessarily dependent on the particular circumstances of the
case.” This committee will not act as a fact finder. If the outcome of a question presented is
dependent on deciding among conflicting facts, the committee will to the extent possible issue an
opinion which addresses the ultimate findings of fact. See Ethics Committee Procedures adopted
9/23/98.

Representation implied from familial circumstances. There is some indication that
Jane Doe’s claim of a conflict of interest might be based upon the familial circumstances of the
parties, specifically that “the terms and longevity of that contract were for the financial well being of
this entire family.”

Ethics Opinion No. 00-01(January 26, 2000) reflects the Committee’s view that, because
divorce matters affect virtually all aspects of a person’s life, it would be difficult to conceive of any
situation where it would not be a conflict of interest for an attorney to represent one spouse in a
divorce or adverse domestic relations matter where that attorney or another member of that
attorney’s firm had represented the opposing spouse on other matters.

However, Ethics Opinion No. 00-01 involved circumstance where the other matters were

5

family law matters that were substantially related to the representation at issue. Regardless of
whether the matter of their daughter’s traffic citation can be considered a “family law matter”, which
does not appear to be the case, it does not appear that such would be substantially related; and,
therefore, would not constitute a conflict of interest which would preclude representation of one
spouse.

Furthermore, under the facts involved in Ethics Opinion No. 00-01 it was clear that an
attorney client relationship between the attorney and the other spouse had existed in the past.

In any event, absent the existence ofa prior attorney client relationship with the other spouse
on a substantially related matter, the Committee is not prepared to conclude that an attorney is
precluded from representing one party in a divorce or adverse domestic relations matter simply
because that attorney or another member of that attorney’s firm has represented that spouse in any
other matter which affects the financial well being of the other spouse or the entire family.

Potential client. Other Ethics Opinions have dealt with the obligations owing to a
“potential client.” See, for instance, Ethics Opinion No. 01-01. However, the critical issue in that
context dealt only with an attorney’s obligation to maintain the confidentiality of certain
information, notwithstanding that no attorney client relationship was established. Because Jane Doe,
as the potential client in this scenario, seeks to rely upon the information which might otherwise be
confidential, i.e. the employment agreement, any status as a potential client is irrelevant.

Conclusion
As stated in Ethics Opinion No. 01-01:
_.. Since ... no attorney/client relationship appears on the facts to have been formed between

Jane Doe and Attorney [A] regarding this earlier employment matter, no conflict of interest
can be presumed or inferred from these uncontroverted facts.

By the procedural rules of the SBAND Ethics Committee dated December 4, 1995,

‘the committee will not act as a fact finder. If the outcome of a question presented is
dependent on deciding among conflicting facts, the committee will to the extent possible
issue an opinion which addresses the ultimate findings of fact.’ Here the committee has been
provided with a specific recitation of underlying facts by the requesting attorney and no
contradictory facts are being offered by opposing counsel who has suggested the conflict of
interest but has not defined the [basis therefore]. This opinion, therefore, assumes the
accuracy of the facts as presented by the facts presented by the presenting attorney.

The referenced procedural language is identical to the Ethics Committee Procedures adopted
9/23/98.

Therefore, it is the opinion of the Ethics Committee that, in the absence of evidence that an
attorney client relationship was established on the basis of Jane Doe’s reasonable belief that she was
represented by Attorney A or that Attorney A acted for the purpose of protecting Jane Doe’s
interests as concems the employment contract, the requesting attorney would not be required to
withdraw as attorney for John Doe.

This opinion is provided pursuant to Rule 1.2(B) of the North Dakota Rules for Lawyer
Discipline. This Rule states:

A lawyer who acts with good faith and reasonable reliance on a written opinion or

advisory letter of the ethics committee of the association is not subject to sanction for

violation of the North Dakota Rules of Professional Conduct as to the conduct that is

the subject of the opinion or advisory letter.

This opinion was drafted by Dann Greenwood and was approved by a unanimous vote of the

Committee on August 2, 2005.

Max Hanson, Chair

a

’