A law firm represented both spouses on business and property matters for years. Can the firm now represent the husband in a divorce against the wife?

Plain-English summary

Opinion E-89-4 addressed a law firm that, over fifteen or more years, had represented a husband and wife on a series of matters: incorporating their plumbing and heating business, buying their homestead, buying a trailer court, regulatory matters, additional corporate real estate, and a conference about financial problems with the homestead, along with collection and landlord-tenant work and collection work for the couple's corporation. The husband then asked the firm to represent him in commencing a divorce against the wife. The question was whether that divorce representation would be the "same or substantially related matter" in which the husband's interests are materially adverse to the wife's, within the meaning of SCR 20:1.9 and the committee's earlier opinions E-85-8, E-85-9, and E-87-3.

The committee explained, quoting federal authority and Berg v. Marine Trust Co., that a substantial relationship exists "if the factual contexts of the two representations are similar or related," and that doubts about an asserted conflict should be resolved in favor of disqualification. Applying that standard, the committee concluded that although the prior matters were not the "same" as the divorce, they would appear substantially related because the firm would be seeking to divest a former client, the wife, of property interests the firm previously assisted her in acquiring, citing SCR 20:1.9(a) and City of Whitewater v. Baker. Accordingly, the committee concluded that unless the former client, the wife, consents after consultation, the proposed representation may not be accepted. It added that, although SCR 20:1.9 does not require it, both the consultation and consent should be confirmed in writing to reduce future misunderstandings, emphasizing that this writing recommendation was not meant to suggest a standard of conduct but only a means of avoiding disputes.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The former-client conflict rule SCR 20:1.9 was later revised. 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 Treat this page as historical context, not current guidance.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 firm that represented a married couple on business matters take one spouse's side in their divorce?

A: Per the opinion, not without the other spouse's consent after consultation, because the committee found the prior business and property work substantially related to the divorce under SCR 20:1.9.

Q: Why were unrelated business and property matters "substantially related" to a divorce?

A: The committee concluded the relationship existed because the firm would be trying to divest the wife, a former client, of property interests the firm had helped her acquire, so the factual contexts were related.

Q: Did the committee require written consent?

A: No. The committee said SCR 20:1.9 did not require it but recommended confirming the consultation and consent in writing to avoid later misunderstandings, while stressing this was not a standard of conduct.

Background and rules framework

The opinion interpreted SCR 20:1.9 / Model Rule 1.9 (duties to former clients), and specifically the "substantial relationship" test for when a new matter is adverse to a former client, read with the "Terminology" definition of "consultation."

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.9 / Model Rule 1.9 (duties to former clients)

Cases:

• Berg v. Marine Trust Co., 141 Wis. 2d 878, 416 N.W.2d 643 (1987), substantial-relationship test
• City of Whitewater v. Baker, 99 Wis. 2d 449, 299 N.W.2d 584 (Ct. App. 1980)
• Smith v. Whatcott, 757 F.2d 1098 (10th Cir. 1985); Trone v. Smith, 621 F.2d 994 (9th Cir. 1980)

Other opinions cited:

• Wisconsin Formal Ops. E-85-8, E-85-9, E-87-3

See also

• WI Ethics Op. EF-20-02: Cross-Examining a Client
• WI Ethics Op. E-89-10: Representing Co-Investors
• WI Ethics Op. E-92-1: Plaintiff and Subrogated Insurer

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-4.pdf