April 16, 1993
Unless the former client consents, a lawyer may not continue representation of a client in a child custody matter after learning that the former spouse of the client is married to a former client of the lawyer.
References: MRPC 1.7(b), 1.9; RI-46, RI-48, RI-95, RI-154.
A lawyer who represents a client in a child custody action recently discovered that the defendant and former spouse of the client is currently married to a person whom the lawyer represented in a child custody matter approximately ten years ago. The lawyer asks if there is a conflict of interest in continuing representation of the current client.
MRPC 1.9 states:
"(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
"(b) Unless the former client consents after consultation, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated has previously represented a client
"(1) whose interests are materially adverse to that person, and
"(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.
"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
"(1) 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; or
"(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."
The Comment to 1.9 states:
"After termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this rule. The principles in Rule 1.7 [loyalty] determine whether the interests of the present and former client are adverse . . . ."
In RI-48, where a lawyer could not represent in a divorce action the husband of a woman who had previously consulted the lawyer regarding a divorce, the three criteria to be examined in applying MRPC 1.9 were set forth as follows:
(a) is the new representation materially adverse to the interest of a former client; (b) is the new representation "the same or substantially related" to the representation of the former client; and (c) could confidential information gained in the former representation be used to the disadvantage of the former client.
In RI-46 the Committee observed that a subsequent representation is "substantially related" to a former representation if the subject matter of the representation is the same, the factual or legal issues overlap, or there is a likelihood that confidential information obtained in the former representation will have relevance to the subsequent representation. 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. In accord, RI-95.
In this case, despite the passage of years, the criteria of RI-48 and RI-46 are met. Both the current and the former representation involve child custody matters. The former client is married to the ex-husband of the current client and one of the issues in the child custody case is the custodial environment in the ex-husband's home. The custodial environment in the ex-husband's home is determined not only by the ex-husband's treatment of the child in the current dispute, but also (a) the ex-husband's treatment of children of his current spouse and (b) the treatment of all the children by the ex-husband's current spouse.
Because the lawyer now represents the ex-husband's former spouse in a custody matter, the lawyer will have to challenge the ex-husband's custodial environment, a position that will be materially adverse to the current interests of the former client. Because the lawyer represented the ex-husband's current spouse in a prior custody matter, the lawyer has information regarding the ex-husband's current spouse and her treatment of children that the lawyer would not have but for the prior client-lawyer relationship. Use or disclosure of such information is prohibited by MRPC 1.9(c). Since the lawyer's duty of diligence to the current client would require the lawyer to use that information to the benefit of the current client, and the lawyer's duties under MRPC 1.9(c) prohibit that use, the lawyer's representation of the current client is materially limited by the lawyer's duties to the former client, and the lawyer may not continue the representation. See MRPC 1.7(b), RI-154.
Thus, unless the former client consents, the lawyer may not continue representation of the current client.