Is it a conflict to represent a wife in a divorce against a man the firm represented in a different divorce sixteen years earlier?

Plain-English summary

A law office had represented Husband A in a 1978 divorce against a first wife. In 1994, Husband A sued a second wife for divorce, and the same office had represented that second wife in various matters, including her own earlier divorce. The committee was asked whether representing the second wife against Husband A would be a conflict.

The committee said the question could not be answered on the sparse facts presented, but it laid out the Rule 1.9 framework. Under Rule 1.9(a), it found it "may be unlikely" that two divorces sixteen years apart would be the same or a substantially related matter; but if the firm believes there is a possibility the matters are substantially related, it should not proceed without Husband A's consent after consultation. Under Rule 1.9(c), if the firm obtained information in the 1978 representation that could be used or revealed to Husband A's disadvantage in the new action, representing the second wife would be an impermissible conflict.

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 Treat this page as historical context, not current guidance.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: Did the committee say the representation was barred?

A: No. It declined to answer definitively on the limited facts, framing the result as turning on the Rule 1.9 analysis below.

Q: Does the sixteen-year gap settle the question?

A: Not by itself. The committee thought it "may be unlikely" two divorces that far apart are substantially related, but said the firm must still get Husband A's consent if it believes they might be.

Q: What if the firm learned something useful from the 1978 case?

A: Under Rule 1.9(c), if the firm could use or reveal information from the prior representation to Husband A's disadvantage in the new action, taking the second wife's case would be an impermissible conflict.

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, which cross-reference Rules 1.6 and 3.3. 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. 94-15: Former Joint Clients in a Later Divorce
• 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-94-19/

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 94-19

In 1978 Law Office represented Husband A in a divorce action against Wife (1). In 1994 Husband A sues Wife (2) for a divorce. Law Office has represented Wife (2) in various actions, including a divorce against Husband B.

Question:
Is it a conflict to represent Wife (2) in the divorce action brought by Husband A?

Summary:
This question cannot be answered on the sparse facts presented. However, Rule 1.9 does provide guidelines and considerations that should be given prior to undertaking such representation.

Opinion:
Rule 1.9(a) provides: "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 person's interest are materially adverse to the interests of the former client unless the former client consents after consultation." It may be unlikely that two separate divorce proceedings occurring 16 years apart would involve the "same or substantially related matter". However, if Law office believes that there is a possibility that the "matter" in the two actions may be the same or substantially related, representation should not be undertaken without the consent of Husband A after consultation with him (or his attorney).

Rule 1.9 (c) provides: "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 except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known, or (2) Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client." If from its prior representation of Husband A Law Office obtained information which could be revealed or otherwise used to the disadvantage of Husband A in the action involving Wife (2), it would be an impermissible conflict for Law Office to represent Wife (2) in the subsequent divorce action brought by Husband A.