Can a lawyer a husband consulted about a criminal case later represent the wife in their divorce, when the wife sat in on that consultation?

Plain-English summary

The lawyer had been consulted by a man about possible representation in a criminal case, during which interview the man was accompanied by his wife. The lawyer later undertook to represent the wife in a marriage dissolution proceeding. The husband alleged he had been a client and felt the lawyer should withdraw, which, to avoid difficulty, the lawyer did.

The committee was of the opinion that the lawyer was correct to withdraw in the circumstances described. The husband had disclosed confidences and secrets to the lawyer, which RPC 1.9 would prohibit the lawyer from using in now representing the wife. The committee was of the opinion that this was not changed by the fact that the lawyer had allowed the wife to be present when the husband disclosed confidences or secrets.

Currency note

This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does a consultation make someone a former client for conflict purposes?

A: Under this 1990 opinion, on these facts the committee treated the husband as having disclosed confidences and secrets the lawyer could not use against him under RPC 1.9, supporting the lawyer's withdrawal.

Q: Does the spouse's presence during the consultation waive the confidences?

A: No. The committee was of the opinion that the situation was not changed by the fact that the lawyer had allowed the wife to be present when the husband disclosed confidences or secrets.

Q: Was withdrawing from the wife's case the right call?

A: The committee was of the opinion that the lawyer was correct to withdraw in the circumstances described.

Background and rules framework

At the time of this opinion, Washington's RPC 1.9 governed duties to former clients, barring later representation adverse to a former client in a substantially related matter and prohibiting use of the former client's confidences, the subject the Model Rules place in Rule 1.9. The committee treated the husband's disclosures as protected and not waived by the wife's presence.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.9 (duties to former clients)
• Washington RPC 1.9

See also

• WA Ethics Op. 1350: Former AAG Suing a Former Client College
• WA Ethics Op. 1349: Former Agency Lawyer Appearing Before the Agency

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=460

Original opinion text

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

The Committee reviewed your inquiry concerning a situation wherein you had been consulted by a man regarding possible representation in a criminal case, during which interview with you he was accompanied by his wife. Subsequently, you undertook to represent the wife in a marriage dissolution proceeding. The husband alleged that he had been a client of yours and therefore felt you should withdraw from representing the wife, which to avoid difficulty you did. The Committee was of the opinion that you were correct to withdraw in the circumstances as you described them. The Committee was of the opinion that the husband had disclosed confidences and secrets to you which RPC 1.9 would prohibit you from using in now representing the wife. The Committee was of the opinion that this situation was not changed by the fact that you had allowed the wife to be present when the husband was disclosing confidences or secrets.