Could a lawyer who had represented both spouses represent the wife against the husband in a later divorce?

Plain-English summary

The lawyer had represented the husband in an accident claim, the husband as administrator in a wrongful death case, and both spouses in an insurance claim. Earlier matters involved psychiatric information about family members. The proposed divorce would involve marital property and child-related issues.

The committee applied the former-client principle against taking substantially related adverse work or injuring a former client in a matter of prior representation. It found the proposed divorce representation substantially related to the lawyer's earlier work for the husband.

The committee considered that much of the information had been acquired during joint representation and was available to the wife. It said any exception to the prohibition on changing sides after representing both adversaries would be narrow and would not cover this case. The lawyer had represented the husband alone in part of the earlier work and likely held more complete information and relevant impressions than the wife's recollection.

Currency note

This opinion was issued in 1978 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the fact that the wife shared much of the earlier information permit the lawyer to represent her?

A: No. The committee said a possible exception for earlier joint representation would be narrow and did not cover these facts.

Q: Had the lawyer previously represented the husband alone?

A: Yes. The committee identified part of the earlier work as solely for the husband.

Background and rules framework

The opinion discussed the former-client prohibition on substantially related adverse representation and cited cases on changing sides after former and joint representation. It did not cite a numbered disciplinary rule.

Citations and references

Cases cited:

• In Re Themelis, 117 Vt. 19, 23 (1951).
• Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973).
• Garner v. Wolfenbarger, 430 F.2d 1093, 1103 (5th Cir. 1970).
• In Re Braun, 49 N.J. 16, 227 A.2d 506 (1967).

See also

• Vermont Ethics Op. 79-26: Opposing a former town client
• Vermont Ethics Op. 80-08: Appeal against a former client

Source

• Landing page: VBA conflict of interest opinions
• Original PDF: Vermont Advisory Opinion 78-03
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”