Can a lawyer's firm represent a wife in a divorce against a husband the firm formerly represented in a child-custody case?

Plain-English summary

An attorney had formerly represented a husband in a custody dispute over children born before his current marriage. Family Court then appointed a member of that attorney's office to represent the husband's current wife in a divorce. The committee was asked whether a firm member could take the wife's case (1) in a divorce-only matter and (2) where custody of a child of the current marriage was at issue.

On the first question, the committee concluded the representation is permissible because no rule absolutely precludes it, but the issues are fact-sensitive. Applying the test from Advisory Opinion 81-22, the attorney retains a continuing duty of confidentiality to the husband: she may not use information from the custody matter to his disadvantage (Rule 1.9(c)(1)) or reveal it while representing the wife, even as she owes the wife diligent representation (Rule 1.3). Under Rule 1.9(a), the husband's consent after consultation is required if the wife's divorce arises from the same transaction or is substantially related to his custody case and her interests are materially adverse to his. Because the prior matter concerned children unrelated to the current wife, the committee found those triggers were not met on the stated facts. By imputed disqualification under Rule 1.10(a), any disqualification of the attorney would extend to the whole firm.

On the second question, adding custody of a child of the current marriage makes ethical representation less likely. The same rules apply, but precluding use of the prior-representation information is "probably incompatible" with diligent representation of the wife on custody, and even if confidentiality could be preserved, the husband's consent would be required because the new custody contest is far more likely substantially related to his earlier custody case.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could the firm represent the wife if the case was only a divorce?

A: The committee concluded yes, because no rule absolutely precludes it, provided the attorney would not have to use or reveal confidential information from the prior representation of the husband, and provided Rule 1.9(a) consent was not triggered on the facts.

Q: What changed when custody of a child of the marriage was added?

A: The committee found ethical representation much less likely, because not using the prior information was probably incompatible with diligent representation, and the new custody fight was far more likely substantially related to the husband's earlier custody case, requiring his consent.

Q: Did the conflict reach every lawyer in the office?

A: Yes. The committee applied imputed disqualification under Rule 1.10(a): if the attorney was prohibited under Rule 1.9, all members of her firm were prohibited as well.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients), including the use-and-disclosure limits in Rule 1.9(c) and the substantial-relationship/consent test in Rule 1.9(a); Rule 1.10(a) (imputed disqualification within a firm); and Rule 1.3 (diligence). The committee relied on its earlier Advisory Opinion 81-22 and on Madison v. Graffix, Inc. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients (substantial relationship; use and disclosure of information).
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm.
• South Carolina RPC 1.3 / Model Rule 1.3: diligence.

Cases:

• Madison v. Graffix, Inc., 404 S.E.2d 37, 40 (S.C. App. 1991), adopting the language of the advisory-opinion conflict test.

Other opinions cited:

• SC Bar Adv. Op. 81-22: the test for a successive-representation conflict.

See also

• SC Bar Ethics Op. 94-15: Former Joint Clients in a Later Divorce
• SC Bar Ethics Op. 94-19: Former Client Conflict Across Two Divorces
• SC Bar Ethics Op. 94-14: Imputed Conflict in an Estate Matter

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-13/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-13

An attorney formerly represented a husband in an action regarding the custody of children born before his current marriage. The husband's current wife is in prison. Family Court has appointed a member of this attorney's law office to represent the current wife in a divorce action.

Questions:
1. May a member of this law firm represent the wife against the husband if there is no issue other than divorce?
2. May a member of this law firm represent the wife if custody of one child from the marriage is at issue?

Summary:
1. Yes, provided the lawyer would not be required to violate any duty of confidentiality to the husband.
2. Given the similarities of the issues in the child custody matters, it is likely the matters would be substantially related. It is hard to conceive of any circumstance in which such representation would be permitted without the husband's consent.

Opinion:
1. The rules in this case are simple. But the ethical issues are fact sensitive. The attorney herself who formerly represented the husband in the child custody action may now represent the husband's current wife in a divorce action because no rule absolutely precludes representation. In Advisory Opinion 81- 22, this committee held that the test is whether "...accepting the new retainer will require ... [the attorney], in forwarding the interests of the new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon in his new relation, to use against his former client any knowledge or information acquired through their former connection." See also Madison v. Graffix, Inc., 404 S.E.2d 37, 40 (S.C. App. 1991), which substantially adopts the language of the advisory opinion.

The attorney has a continuing duty of confidentiality to the husband. The attorney may not use any information relating to the child custody matter to the disadvantage of the husband in the divorce action. SCACR 407, paragraph 1.9(c)(1). Nor may the attorney reveal any information relating to that earlier representation in the course of representing the current wife in the divorce action. At the same time, the attorney has a duty of acting with reasonable diligence on behalf of the current wife, SCACR 407, paragraph 1.3, and this duty of due diligence may conflict with the attorney's continuing duty of confidentiality to the former client if, for example, the divorce action is contested or requires a division of assets.

Moreover, under SCACR 407, paragraph 1.9(a), the attorney must obtain the husband's consent after consultation if (a) the wife's divorce arises from the same transaction or (b) her divorce is substantially related to the husband's child custody case, and (c) her interests are materially adverse to the former client-husband's. However, the prior representation involved children born before his marriage to the prospective client; according to the facts given, the children have no relationship to this current wife. In any other factual circumstances, a duty to obtain consent may arise.

In this response, the committee assumes that when the inquirer says "this office," the reference is either to the attorney or to members of the attorney's law firm. If so, all members of the firm, by imputed disqualification, would be prohibited from representing the wife, if the attorney is prohibited under SCACR 407, paragraph 1.9 and 1.10(a).

2. The additional fact, that custody of one child from the current marriage is at issue, renders ethical representation less likely. The same rules apply. The attorney and other members of the law firm are subject to the same limitations arising from duty of confidentiality if custody of one child from the current marriage is at issue. Neither the attorney nor other members of the law firm may use or reveal information derived from the prior representation of the husband. Precluding use of the information is probably incompatible with diligent representation of the current wife on the issue of child custody. Even if the duty of confidentiality can be fulfilled, the attorney must obtain the husband's consent to the representation, because the child custody contest between the husband and current wife is far more likely substantially related to the husband's earlier child custody case, even if it does not involve the same transaction as the prior case.