Can a firm that jointly represented a couple in an adoption later represent the husband in their divorce and custody case over the wife's objection?

Plain-English summary

Law Office A had jointly represented a husband and wife in a 1992 adoption proceeding, which examined their fitness as parents, their finances, their living accommodations, and their lifestyles. Less than a year later the couple separated, the wife retained other counsel to sue for divorce and custody, and the husband asked Law Office A to represent him. The wife did not consent.

The committee concluded Rule 1.9 prohibits the representation. Because Law Office A had represented both spouses in the adoption, the question was whether that matter was substantially related to the divorce and custody action. The committee found that all of the adoption issues were substantially related to custody, and at least some were substantially related to the divorce. Since the spouses' interests are now materially adverse and the wife will not consent, Rule 1.9(a) bars Law Office A from representing the husband. The committee added that it need not reach Rule 1.9(c), but noted the firm would probably be barred in any event because the information the spouses gave during the adoption (fitness, finances, lifestyles) is relevant to the divorce and 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 Treat this page as historical context, not current guidance.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 husband in the divorce over the wife's objection?

A: The committee concluded no. Rule 1.9(a) bars representation adverse to a former client in a substantially related matter without that client's consent, and the wife did not consent.

Q: Why was the adoption case "substantially related" to the divorce?

A: The committee found the adoption's inquiry into the spouses' fitness, finances, living arrangements, and lifestyles overlapped directly with the issues in custody and, in part, divorce.

Q: Would consent alone have solved the problem?

A: Not necessarily. The committee did not have to reach Rule 1.9(c), but observed that the confidential information from the adoption was relevant enough that the firm "probably would be prohibited" from representing the husband in any event.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients): subsection (a)'s substantial-relationship and consent test, and subsection (c)'s limits on using or revealing a former client's information. The South Carolina rule corresponds to like-numbered Model Rule 1.9.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: duties to former clients (substantial relationship; consent; use and disclosure of information).

See also

• SC Bar Ethics Op. 94-13: Former-Client Divorce and Custody Conflict
• 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-94-15/

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 94-15

Law Office A represented Husband and Wife ("H" and "W") in an adoption proceeding which resulted in an Order of Adoption in June, 1992, declaring H & W as parents by adoption of a child. The issues addressed in the adoption proceeding included the fitness of H & W as parents; their financial circumstances and data; their living accommodations; and their personal lifestyles.

In May, 1993, H & W separated; and W retained Law office B which brought an action on her behalf against H for divorce and custody of the child. H has asked Law Office A to represent him in the action filed by W. W does not consent to the representation of H by Law Office A.

Question:
Is Law Office A ethically prohibited from representing H in the divorce and custody action?

Summary:
Rule 1.9 prohibits the representation of H by Law Office A.

Opinion:
Rule 1.9 provides:

"(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons' interests are materially adverse to the interests of the former client unless the former client consents after consultation....

...

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) Use information relating to the representation to the disadvantage of the former client...; or (2) Reveal information relating to representation...".

Under this factual situation Law Office A represented both H & W in the prior adoption proceeding. Therefore, the issue is whether the prior adoption action and matters which were involved therein are "substantially related" to the present action for divorce and custody. In the present case the parties separated less than one (1) year from the rendition of the Order of Adoption. It would appear that all of the issues addressed in the adoption proceeding are substantially related to the issue of custody in the present action, and at least some of the issues in the adoption proceeding would be substantially related to the issue of divorce. Therefore, because the interests of H & W are materially adverse in the subsequent divorce and custody action, in order for Law Office A to represent H in that action, W would have to consent to such representation.

Since W is unwilling to consent to the representation H by Law Office A in the subsequent divorce and custody action thereby prohibiting such representation under 1.9 (a), it is not necessary to address the issues presented in 1.9 (c) which may prohibit such representation regardless of consent. However, because of the information given to Law Office A by H and W in the prior adoption proceeding relating to their fitness as parents, financial disclosures, and knowledge of their lifestyles, all of which are relevant to the issues in the divorce and custody action, Law Office A probably would be prohibited from undertaking the representation of H in the subsequent action in any event.