May a lawyer who drafted a husband's antenuptial agreement twelve years ago now represent the wife in a divorce, where the agreement's property is still in existence?

Plain-English summary

Twelve years earlier, the attorney drafted an antenuptial agreement on behalf of the husband. The wife now contacted the attorney to represent her in a divorce, the property mentioned in the agreement was still in existence, and the wife stated she would not contest the antenuptial agreement. The attorney asked whether he could represent the wife.

The committee concluded the answer is no unless the husband consents after consultation, and even then the lawyer should be extremely careful not to use any confidential information gained during the drafting. It applied SCRA 1986, Rule 16-109, under which a lawyer who formerly represented a client may not represent another person in the same or a substantially related matter in which interests are materially adverse to the former client, absent the former client's consent after consultation, and may not use information relating to the representation to the former client's disadvantage except as Rule 16-106 permits or where the information has become generally known.

The committee found the divorce, with its necessary involvement in dividing the parties' property, substantially related to drafting the prior agreement. The agreement mentioned two items of property still in existence (appearing to be the husband's business and the real estate on which it sits), and although it stated specific amounts representing the husband's payments to date on these items of separate property, the committee could not be sure there would never be an issue about the separate character of the property or the amount of separate property represented. It therefore concluded that, unless the husband consents, the lawyer should not undertake to represent the wife, particularly if the lawyer has confidential information relating to the amounts set forth in the agreement.

Currency note

This opinion was issued in 1988, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-109 and 16-106). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). Treat this page as historical context, not current guidance.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: Can a lawyer who drafted a spouse's antenuptial agreement later represent the other spouse in a divorce?

A: The opinion concluded not without the former-client spouse's consent after consultation, because the divorce's property division is substantially related to drafting the agreement under Rule 16-109.

Q: Does it matter that the wife said she would not contest the agreement?

A: The committee still found a conflict, reasoning it could not be sure issues would never arise about the separate character or amount of the property, two items of which (the husband's business and its real estate) were still in existence.

Q: Does consent fully resolve the problem?

A: The committee concluded that even with the husband's consent, the lawyer should be extremely careful not to use any confidential information gained during the drafting, and that the concern is particularly acute if the lawyer holds confidential information about the amounts in the agreement.

Background and rules framework

The opinion applied SCRA 1986, Rule 16-109 (duties to former clients: no representation in the same or a substantially related matter materially adverse to the former client without consent, and no use of the representation's information to the former client's disadvantage), read with Rule 16-106 (confidentiality). These correspond to current Model Rules 1.9 and 1.6.

Citations and references

Rules of Professional Conduct:

• SCRA 1986, Rule 16-109(A), (B) (duties to former clients; substantial relationship; use of information)
• Rule 16-106 (confidentiality of information)

See also

• NM Ethics Op. 1987-4: Lawyer-Witness Against a Former Client

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1988/1988-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion 1988-5
Twelve years ago, the attorney drafted an antenuptial agreement on behalf of husband. The attorney has now been contacted by wife to represent her in a divorce action. Property mentioned in the agreement is still in existence. The attorney states that wife will not contest the antenuptial agreement and wishes to know if he may now represent wife.
The answer is no unless husband consents after consultation and even then the lawyer should be extremely careful not to use any confidential information gained during the drafting of the agreement. SCRA 1986, 16-109 states:
A lawyer who had 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 16-106 would permit with respect to a client or when the information has become generally known.
We believe that the matter of the divorce and its necessary involvement with division of the parties' property is substantially related to the drafting of the prior agreement. The agreement mentions two items of property the lawyer informs us are still in existence. These two items appear to be husband's business and the real estate on which it sits. Although the agreement states specific amounts representing husband's payments to date on these items of separate property, we cannot be sure that there will never be an issue in the case concerning the separate character of the property or the amount of separate property represented. Therefore, unless husband consents, we do not believe that the lawyer should undertake to represent wife. We believe this is particularly true if the lawyer has confidential information relating to the amounts set forth in the agreement.