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Ethics Opinion

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RI-48

May 11, 1990

SYLLABUS

    A lawyer may not represent in a divorce action the husband of a woman who had previously consulted the lawyer regarding a divorce.

    Any member of a firm is disqualified from representing in a divorce action the husband of a woman who had previously consulted with any member of the firm regarding a divorce.

    References: MRPC 1.9, 1.10(a); RI-46; General Electric Co. v. Valeron, Inc., 608 F2d 265 (CA6 1979), cert den 445 US 930.

TEXT

Lawyer A was consulted by a wife regarding possible representation in a divorce action. A lengthy discussion was had between the two. Lawyer A was not retained and no fee was charged for the consultation. Lawyer A has no recollection of the meeting and no notes pertaining to it. The wife also consulted with several other lawyers in the area who specialized in divorce. Ten months later, Lawyer B, another member of Lawyer A's firm, was approached by the husband of the woman who had consulted Lawyer A. The woman had retained Lawyer C and filed a complaint for divorce. Lawyer B asks whether it is ethical for Lawyer B to represent the husband.

MRPC 1.9 states:

    "A lawyer who has formerly represented a client in a matter shall not thereafter:

      "(a) represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interest of the former client unless the former client consents after consultation; or

      "(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known."

MRPC 1.10(a) states:

    "While 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, 1.8(c), 1.9, or 2.2."

Before MRPC 1.9 and 1.10(a) can be applied, the question of whether a client-lawyer relationship was established must be addressed. In The Law of Lawyering, Prentice-Hall, 1989 Supplement, authors Hazard and Hodes discussed this question:

    "Whether a client-lawyer relationship was established may depend on how specifically the case was discussed during consultation. If confidences were imparted in good faith, a client-lawyer relationship existed for purposes of applying Rule 1.9." pp. 179-80.

Even if a client-lawyer relationship was not created by the initial interview, clearly confidences and secrets were shared with the lawyer which cannot be used to the disadvantage of the wife without consent. Pursuant to MRPC 1.7(b), the lawyer may not represent a new client if the representation will be materially limited by the lawyer's duty of confidentiality to the wife.

If a client-lawyer relationship did in fact exist, MRPC 1.9 is applicable. The three criteria to be examined in applying MRPC 1.9 are: (1) is the new representation materially adverse to the interest of a former client, (2) is the new representation the "same or substantially related" to the representation of the former client, and (3) could confidential information gained in the former representation be used to the disadvantage of the former client?

In this case, two of the criteria are clearly met. The representation of the husband in a divorce from the former client is obviously adverse to her interest, and the initial consultation was regarding the same matter. It is possible that confidential information discussed during the consultation could be used to the former client's disadvantage. In the case of doubt about whether a matter is substantially related, or whether confidential information relating to the former representation could be used to the disadvantage of the former client, a lawyer should decline the representation, RI-46; General Electric Co. v. Valeron, Inc., 608 F2d 265 (CA6 1979), cert den 445 US 930. Further, the former client has not consented to the representation of her husband by Lawyer A.

The final determination to be made here is whether Lawyer B, a member of Lawyer A's firm can represent the former client.

MRPC 1.10(a) states:

    "While 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, 1.8(c), 1.9, or 2.2."

    The Comment to MRPC 1.10 states in part:

      "The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated."

Whether a lawyer-client relationship was created, triggering the lawyer's duties under MRPC 1.9, or whether there was no lawyer-client relationship and the lawyer merely owed duties to a third person under MRPC 1.7(b), the lawyer's law firm is disqualified from representing the husband of Lawyer A's former client in this divorce action pursuant to MRPC 1.10(a).

    "Disqualification has very serious consequences for both client and lawyer. The client has to obtain new counsel who must be brought 'up to speed.' New counsel may be barred from using the work product of disqualified counsel, in order to 'cure' the taint, if the work product reflects confidential information . . . . The disqualified firm suffers not only embarrassment and possible destruction of its relationship with the client but also financial losses. It usually must bear the cost of effecting the transfer of representation. Furthermore, since standard doctrine holds that a lawyer may not collect fees for ethically improper representation, the lawyer forfeits the right to compensation for work already performed." Hazard and Hodes at 177.

Thus, the lawyer and the law firm must decline representation of the husband.

 
     

 

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