May a lawyer represent a husband in divorce after earlier representing the wife in other domestic matters?

Plain-English summary

The requesting lawyer had previously represented both spouses on separate domestic matters. The wife was a former client in a protection-order matter and child-support and custody proceedings. When the spouses later divorced, the husband asked the lawyer to represent him, and the wife objected.

The committee found the prior domestic matters substantially related to the divorce because information from them could be relevant to the new proceeding. It did not accept the lawyer’s statement that no information obtained from the wife could be used against her as removing the conflict. With the former client objecting, it concluded the lawyer should not accept the husband’s representation.

Currency note

This opinion was issued in 2000, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the earlier matters need to involve the same opposing spouse?

A: No. The committee found the wife’s earlier domestic matters substantially related to the later divorce despite different prior adversaries.

Q: Did the lawyer’s belief about not using the wife’s information resolve the conflict?

A: No. The committee identified the likely potential to use information from the prior work against the former client.

Q: What did the committee conclude after the wife objected?

A: It concluded that accepting the husband’s divorce representation would be a conflict of interest.

Background and rules framework

The opinion applies North Dakota Rules 1.6 and 1.9 on confidentiality and former clients, and cites Rule 1.3 in discussing the tension between duties to the former and current clients.

Citations and references

Rules of Professional Conduct:

• North Dakota Rule 1.6.
• North Dakota Rule 1.9.
• North Dakota Rule 1.3.

Statutes:

• N.D.C.C. § 14-09-06.2, child-custody factors cited in the opinion.

Cases:

• Moilan v. Moilan, 1999 ND 103, 598 N.W.2d 81 (N.D. 1999), divorce factors cited in the opinion.

See also

• ND Ethics Op. 1997-04: former divorce client

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/00-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NUMBER 00-01
January 26, 2000

The Ethics Committee has been requested to issue an opinion as to whether the

requesting attorney has a conflict of interest under the following facts:

FACTS

The Requesting Attorney has represented both Husband and Wife on various domestic

matters during their marriage to one another. Specifically, the Requesting Attorney represented

the Wife in obtaining a Restraining Order against an acquaintance of her former husband. The

Requesting Attorney has also represented the Wife in conjunction with child support and custody

issues arising from her divorce from the same former husband.
The Requesting Attorney has

also represented the Husband in matters relating to spousal support from an earlier marriage.

Wife has initiated a divorce action against Husband. Husband has retained the

Requesting Attorney to represent him in that divorce action. The Requesting Attorney states that

no information was ever obtained from Wife which could now be used to Wife’s disadvantage in

the pending divorce action.

Wife’s attorney has raised an ethical issue with respect to the Requesting Attorney’s

representation of Husband in the divorce.

APPLICABLE RULES

Rule 1.6 of the North Dakota Rules of Professional Conduct provides that, with limited

exceptions, a lawyer shall not reveal, nor use to the disadvantage of a client, information relating

to representation of that client.

Rule 1.9 of the North Dakota Rules of Professional Conduct specifically addresses the

potential of conflicts of interest arising from prior representation. It states:

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

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(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

For purposes of this opinion, the Committee accepts the Requesting Attorney’s statement

that there was no ongoing representation of either spouse immediately prior to the

commencement of the divorce action and that, therefore, Wife is a former client as contemplated

in Rule 1.9.

It is clear that the interests of the Husband and Wife in the pending divorce litigation are

adverse to one another. Thus, the issue is whether the Requesting Attorney’s representation of

Wife in prior Protection Order, child support and child custody matters are “substantially

related” to the pending divorce case. Similarly, whether the Requesting Attorney is in a position

to use information acquired through the former representation to the disadvantage of Wife in the

divorce case.

The Rules of Professional Conduct are rules of reason. They should be interpreted with

reference to the purposes of legal representation in the particular context of the case being

considered. In determining their application, a lawyer must consider the substantive and

procedural law from which the issue arises. Therefore, it is instructive to briefly consider the

substantive law of divorce, to the extent that it may dictate a lawyer’s professional conduct.

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In divorce matters, virtually all aspects of a person’s life are relevant to one or more

issues. In dividing property, allocating debt, and awarding spousal support, the court considers

the ages of the parties; the parties’ earning abilities; the conduct of the parties during the

marriage; the parties’ station in life; the parties’ health and physical condition; the necessities of

the parties and their circumstances, financial and otherwise; the efforts and attitudes of the

parties towards accumulation of property; and such other matters as the Court may determine are

material. Moilan v. Moilan, 1999 ND 103, ¶ 10, ¶ 18, 598 N.W.2d 81. In matters of child

custody and visitation, the Court considers the disposition of a parent to provide love and

guidance; the disposition of a parent to provide for the material needs of a child; the moral

fitness of the parents; the mental and physical health of the parents; a parent’s relationships with

third parties; whether a parent has been abusive; and any other factors that the court deems

relevant. In summary, there is very little that goes on in one’s life that could not become relevant

in a divorce proceeding. N.D.C.C. § 14-09-06.2. For that reason, communications between a

lawyer and client in domestic matters are frequently wide ranging and address sensitive matters.

In the above context, is a divorce case “substantially related” to prior domestic matters

involving a different adversary but of a nature which could reasonably be expected to have

resulted in confidential communications between attorney and client which could be relevant in

the divorce case? Similarly, is it reasonable to believe that information disclosed by a client in a

protection order, child support or custody proceeding would have relevance in the client’s

subsequent divorce case? In the opinion of the Committee the answer to both questions is "yes."

A review of advisory opinions and cases from other jurisdictions does not disclose an

objective standard by which one can easily determine whether cases are “substantially related.”

The analysis has been upon a case by case basis. While one might argue that it should be left to

the attorney to determine whether he or she has obtained confidential information in the course

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of the previous representation that could be used against the former client, the Committee

believes it would be difficult under the Rules of Professional Conduct for a lawyer to represent

one spouse in a divorce case when he or she has represented the other spouse in family law

matters, whether or not they involve the current spouse, without the former client’s consent.

Irrespective of the attorney’s good faith, it is likely that the potential to utilize information

obtained during the prior proceedings will arise and place the attorney in a position in which his

or her obligation to protect a former client’s confidences conflicts with the obligation to

represent the current client zealously pursuant to Rule 1.3 of the Rules of Professional Conduct.

CONCLUSION

Because the former client has objected, the Committee concludes that the Requesting

Attorney should not accept the representation. To do so would be a conflict of interest.

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 Jay Fiedler and was approved by a vote of ____ by the

Committee on January ____, 2000.

___________
Mark Hanson, Chair

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