If a lawyer briefly joined the firm that had represented the opposing spouse, then left, can the lawyer keep representing the other spouse in the same divorce when the lawyer never got any confidential information about the opposing spouse?

Plain-English summary

Opinion 16-01 follows a lawyer (Lawyer A) through a chain of firm moves in a single divorce matter. Lawyer A represented the wife. The husband had been represented by Lawyer B at Law Firm B and then discharged that firm. Lawyer A later joined Law Firm B, and the husband signed a written waiver consenting to Lawyer A's continued representation of the wife, limited to mediation and settlement. While at Firm B, Lawyer A obtained no information about the husband: he did not access the husband's file or discuss the case with Lawyer B, and all case information came from the wife or third parties. After the case settled, Lawyer A left Firm B for Law Firm C. The question is whether the wife may re-hire Lawyer A at Firm C to represent her against the husband on post-decree enforcement issues.

The Committee answers yes. It walks through imputation under Rule 1.10(a), which would impute Firm B's conflict to Lawyer A while he was at Firm B, then through Rule 1.9(a), which would ordinarily bar adverse representation against a former client absent written informed consent. It notes the husband's and wife's interests are directly adverse in the same matter, but that Lawyer A had obtained the husband's written consent for the representation during the Firm B period, and that Lawyer A did not access the husband's file, speak with Lawyer B, or otherwise obtain information from Firm B about the husband. The Committee concludes Lawyer A's representation of the wife while at Firm B complied with Rule 1.9.

For the post-decree representation at Firm C, the Committee applies Rule 1.9(b), which disqualifies a lawyer who has moved from a firm only where the lawyer acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter. Because Lawyer A acquired no such protected information about the husband, the elements of Rule 1.9(b)(2) are not met, and Lawyer A may represent the wife on the post-decree issues without the husband's consent. The Committee anchors this to Comment 4 to Rule 1.9, which states that paragraph (b) disqualifies only where the lawyer has actual knowledge of protected information.

In practice

Under this opinion, a lawyer who passed through the firm that had represented the opposing party may later represent the adverse client without the former client's consent if the lawyer acquired no information protected by Rules 1.6 and 1.9(c) about that former client. Per the opinion, the analysis turns on actual knowledge: Rule 1.9(b) disqualifies only where the moving lawyer acquired protected, material information, and the Committee found Lawyer A had not (no file access, no discussion with prior counsel, all information from the client or third parties). The opinion notes that the imputation rule of Rule 1.10(a) would have controlled while Lawyer A was associated with the husband's former firm, and that during that period Lawyer A had also obtained the husband's written consent. The opinion was issued in 2016; confirm the current text of Utah Rules 1.6, 1.7, 1.9, and 1.10 before relying on the numbering here.

Common questions

Q: Can a lawyer represent a client against a person who was a former client of a firm the lawyer once worked at?

A: Yes, under this opinion, if the lawyer acquired no information protected by Rules 1.6 and 1.9(c) about that former client while at the firm. The Committee concludes that because Lawyer A acquired no such protected information about the husband, Rule 1.9(b)(2) is not satisfied and the representation is permitted without consent.

Q: What makes a lawyer who changed firms disqualified under Rule 1.9(b)?

A: Actual knowledge of protected information. The opinion, quoting Comment 4 to Rule 1.9, states that paragraph (b) disqualifies only where the lawyer has actual knowledge of information protected by Rules 1.6 and 1.9(c); a lawyer who acquired no such information at the prior firm is not disqualified at the new firm.

Q: Did the written consent matter to the outcome?

A: The opinion treats the husband's written consent as the basis for Lawyer A's representation of the wife while at Firm B (the period when imputation under Rule 1.10 would otherwise apply). For the later post-decree representation at Firm C, the opinion rests on Rule 1.9(b) and the absence of protected information, not on consent.

Background and rules framework

The opinion interprets Utah Rules of Professional Conduct 1.6 (confidentiality), 1.7 (current-client conflicts), 1.9 (duties to former clients), and 1.10 (imputation of conflicts), which correspond to ABA Model Rules of the same numbers. Rule 1.10(a) imputes one firm lawyer's Rule 1.7 or 1.9 conflict to the others. Rule 1.9(a) bars representation adverse to a former client in the same or a substantially related matter absent written informed consent. Rule 1.9(b) limits disqualification of a lawyer who has changed firms to matters in which the lawyer acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, a limit the Committee reinforces with Comment 4 to Rule 1.9.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / Utah RPC 1.6 (confidentiality of information)
• MR 1.7 / Utah RPC 1.7 (conflict of interest: current clients)
• MR 1.9 / Utah RPC 1.9(a), 1.9(b), 1.9(c), cmt. 4 (duties to former clients)
• MR 1.10 / Utah RPC 1.10(a) (imputation of conflicts of interest)

See also

• Utah Ethics Op. 18-03: Conflict When a Firm Member Testified as an Expert
• ABA Formal Op. 510: Prospective-Client Conflicts and Imputation
• ABA Formal Op. 497: Materially Adverse Interests Under Rules 1.9 and 1.18

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2016-01/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2016-01.pdf

Original opinion text

Best-effort transcription from a two-column PDF, reassembled in the opinion's own paragraph order. Minor errors may remain; the linked PDF is authoritative.

Opinion No. 16-01

Utah Ethics Opinion

Utah State Bar Ethics Advisory Opinion Committee

Issued February 8, 2016

BACKGROUND

1. Lawyer A, a sole practitioner, was retained to represent Wife in divorce matter. Husband retained Lawyer B at Law Firm B to represent him in the divorce. Husband later discharged Lawyer B and Law Firm B, and Lawyer A continued to represent Wife. Lawyer A later joined Law Firm B, and Husband executed a waiver consenting to Lawyer A's continued representation of Wife, but only for the express purpose of mediation and settlement negotiation. While employed at Law Firm B, Lawyer A obtained no information regarding Husband from Law Firm B. Lawyer A did not access Husband's electronic or hard file maintained by Law Firm B and did not discuss the case with Lawyer B. Instead, all information obtained about the case came from Wife and/or third parties. The case settled and Lawyer A withdrew. Lawyer A later left Law Firm B and joined Law Firm C. Lawyer B remains employed at Law Firm B.

ISSUE

2. May Wife re-hire Lawyer A at Law Firm C to represent Wife against Husband on various post-decree enforcement issues?

OPINION

3. Yes. When Lawyer A left Firm B and joined Firm C, under Rule 1.9 (b) of the Utah Rules of Professional Conduct (the "URPC"), Lawyer A could continue to represent Wife without Husband's consent because Lawyer A did not obtain any information protected by Rules 1.6 and 1.9(c) about Husband.

ANALYSIS

4. When Lawyer A joined Law Firm B, Husband was a former client of Law Firm B. Rule 1.10(a) provides that [w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 and 1.9...." URPC 1.10(a). This means that if Lawyer B and Firm B have a conflict that would prohibit them from representing Wife against Husband, who is Lawyer B's and Firm B's former client, then that conflict would be imputed to Lawyer A now that Lawyer A has joined Firm B, and Lawyer A would not be able to represent Wife, unless an exception applies.

5. Because Husband is a former client of Lawyer B and Law Firm B, the first issue is whether pursuant to Rule 1.9, Duties to Former Clients, a conflict exists. Rule 1.9(a) provides that 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 interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." URPC 1.9(a) (emphasis added). Here, Husband's and Wife's interests are directly adverse in the same matter, the divorce proceedings. However, Lawyer A obtained Husband's consent in writing to Lawyer A's continued representation of Wife in the divorce proceedings for the express purpose of mediation and settlement negotiation.

6. Rule 1.9(c)(1) further provides that a lawyer or firm may not use information relating to the representation of a former client to the disadvantage of the former client. URPC 1.9(c)(1). In addition to obtaining Husband's written consent, Lawyer A did not access Husband's file while at Firm B or speak to Lawyer B about the case involving Husband and Wife. Lawyer A did not obtain any information from Lawyer B or Law Firm B related to their representation of Husband. Because it appears that Lawyer A's representation of Wife while at Law Firm B complied with Rule 1.9, it was proper for Lawyer A to represent Wife while Lawyer A was at Firm B.

7. After the case settled, Lawyer A left Firm B and joined Firm C. Wife then contacted Lawyer A to represent her in connection with post-decree enforcement issues against Husband in the same divorce proceedings. Rule 1.9(b) provides, in pertinent part:

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(b)(1) whose interests are materially adverse to that person; and

(b)(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

URPC 1.9(b) (emphasis added).

8. Because Lawyer A did not acquire information about Husband protected by Rule 1.6 (pertaining to confidentiality of information related to the representation of a client) and 1.9(c), the elements of Rule 1.9(b)(2) are not met, and Lawyer A does not have a conflict in representing Wife in the post-decree enforcement issues and does not have to get Husband's consent to the representation of Wife pursuant to Rule 1.9(b). See URPC 1.6 & 1.9. This result is confirmed by the comments to Rule 1.9, which state:

Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

URPC 1.9 cmt. 4.