Can a lawyer who drafted wills for both spouses later represent the husband in a divorce against the wife?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry concerned whether the lawyer could represent a husband in a dissolution proceeding where the lawyer had written wills for both the husband and the wife in 1975.
The committee was of the opinion that in drafting the wills the lawyer necessarily obtained confidences and secrets from both clients. Because of that, the lawyer could not now undertake to represent the husband adversely to the wife without complying with RPC 1.9.
Currency note
This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule then numbered RPC 1.9, governing duties to former clients, corresponds to Model Rule 1.9 and has since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Can the lawyer who drafted both spouses' wills represent the husband in a divorce?
A: Per the opinion, only by complying with RPC 1.9. The committee was of the opinion that the lawyer could not represent the husband adversely to the wife without doing so.
Q: Why did drafting the wills create the conflict?
A: The committee was of the opinion that in drafting the wills the lawyer necessarily obtained confidences and secrets from both clients, which is what brings the later adverse representation within RPC 1.9.
Background and rules framework
The opinion applies the rule then numbered Washington RPC 1.9, corresponding to Model Rule 1.9, which governs a lawyer's duties to former clients, including the protection of their confidences. The committee treated the wife as a former client from the will drafting and made the confidences obtained in that representation the reason the lawyer's later representation of the husband against her is governed by RPC 1.9.
Citations and references
Rules of Professional Conduct:
- Washington RPC 1.9 (duties to former clients), corresponding to Model Rule 1.9.
See also
- WSBA Ethics Op. 1199: representing a former client's new spouse in a later divorce
- WSBA Ethics Op. 980: a lawyer for both spouses later seeking a guardianship over one of them
- WSBA Ethics Op. 903: jointly represented spouses who then file for divorce
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=285
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1205
Year Issued: 1988
RPC(s): RPC 1.9
Subject: Conflict of interest; client confidences and secrets; lawyer who wrote wills for both husband and wife wishes to represent husband in dissolution
The Committee considered your inquiry concerning whether you may undertake to represent a husband in a dissolution proceeding where you wrote wills for both the husband and wife in 1975. The Committee was of the opinion that in drafting the wills you necessarily obtained confidences and secrets from both clients and therefore, you could not now undertake to represent the husband adversely to the wife without complying with RPC 1.9.
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