Can a lawyer who once represented the wife in a dismissed divorce later represent the husband in a new divorce against her?

Plain-English summary

An attorney represented a wife in a divorce suit, in which she disclosed her grounds for divorce and the parties' financial condition and community property. The parties reconciled and the suit was dismissed at her instruction. Later, after the marriage broke down again, the husband hired the wife's former attorney, who filed a divorce suit on the husband's behalf. The wife then retained new counsel and asked the first attorney to withdraw; he refused. The inquiry asked whether the first attorney violated Canon 34 or any other rule, whether he should withdraw, and whether he should withdraw even if he stated he would not reveal the wife's confidences.

The Committee concluded the conduct violated both Canon 6 and Canon 34. Canon 6 prohibits representing conflicting interests except by express consent of all concerned after full disclosure. Under Canon 34, an attorney's duty to preserve a client's confidences outlasts the employment, and he should not accept employment involving the disclosure or use of those confidences to the client's disadvantage, without the client's consent, even if the information is available from other sources. The Committee said the first attorney should withdraw even though he stated he would not reveal the wife's confidences. The vote was 9-0.

Currency note

This opinion was issued in 1964, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Can a lawyer represent the opposing spouse after handling a prior divorce for the other spouse?

A: The Committee said no. Representing the husband after representing the wife in the earlier divorce violated Canon 6 and Canon 34, and the attorney had to withdraw.

Q: Does a promise not to reveal the former client's confidences fix the problem?

A: No. The Committee said the attorney should withdraw even though he stated he would not reveal the wife's confidences, because the duty to preserve those confidences outlasts the representation.

Q: Why did the prior representation matter even though that suit was dismissed?

A: The wife had disclosed her divorce grounds and the parties' finances to the attorney during the first suit; that the suit was dismissed on reconciliation did not end his duty to protect those confidences against later use to her disadvantage.

Background and rules framework

The opinion interprets former Texas Canon 6 (representing conflicting interests) and Canon 34 (preserving a client's confidences beyond the end of the employment). The modern analogs are ABA Model Rule 1.9 (duties to former clients) and Model Rule 1.6 (confidentiality of information).

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients), as the modern analog
• MR 1.6 (confidentiality of information), as the modern analog
• Texas Canons 6 and 34 (former canons)

See also

• TX Ethics Op. 317: Conflicts From the Same Collision and a Former Associate Switching Sides
• TX Ethics Op. 313: Imputed Conflict From a Partner Who Represented the Opposing Party
• TX Ethics Op. 299: Suing a Defendant the Firm Represents in a Comp Claim

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-294/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_294.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney was employed by a wife and instituted suit in her behalf for a divorce, division of property and possibly other relief. The wife says that she discussed and disclosed all matters known to her as grounds for divorce, as well as all matters concerning the financial condition and community property of the parties. Prior to bringing the matter to trial, the parties reconciled and the cause was dismissed at the wife's instructions.

Sometime later, the wife states that she was compelled to permanently abandon her husband because he returned to his old ways and before she instituted suit, the husband employed her former attorney, who instituted suit in his behalf. An attempt was made to agree on the property, before waiver or answer was filed, but when negotiations broke down another attorney was employed by the wife, who filed a general denial, cross-action and prayer for other relief. At the wife's request, the first attorney has been asked to withdraw as attorney for her husband, but has refused.

Has the first attorney violated Rule 34, or any other rule, in the opinion of the committee? Should he withdraw? Should he withdraw even if he states that he has not and will not reveal to the husband any confidences between himself and his former client, the wife?

18 Baylor L. Rev. 362 (1966)

CONFLICT OF INTERESTS - CONFIDENCES OF CLIENT - DIVORCE CASES
An attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, cannot ethically represent her husband in a subsequent divorce suit filed against her by such husband.

Canon 6 prohibits representation of conflicting interests except by express consent of all concerned given after a full disclosure of the facts. Under Canon 34, an attorney's duty to preserve his client's confidence outlasts his employment, and he should not accept employment which involves the disclosure or use of these confidences to the disadvantage of the client, without the client's knowledge and consent even though there are other available sources of such information. The facts stated in the question would constitute a violation of both Canons, and the attorney should withdraw even though he states that he will not reveal the wife's confidences to the husband. (9-0.)

Tex. Comm. On Professional Ethics, Op. 294 (1964)