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Ethics Opinion

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October 18, 1993


    Unless the former client consents, a lawyer may not represent a new client in an action to retain property previously awarded to the former client of the lawyer.

    References: MRPC 1.9(a); RI-46, RI-137.


In representing a former client, a lawyer obtained a marital property settlement which awarded certain personal property to the former client. The former client's spouse has never turned over some of the personal property, and now claims that a cohabitant has taken some of the property. The lawyer has now been contacted to defend the cohabitant in an action to retain personal property which both the former client and the former client's spouse also claim. The lawyer asks if it is a conflict of interest to represent the cohabitant in the property action.

Confidentiality and loyalty are essential elements of the lawyer-client relationship. MRPC 1.9 governs whenever the interests of the prospective client and the former client are adverse. MRPC 1.9(a) 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."

The criteria to be examined in applying MRPC 1.9 are whether the new representation is materially adverse to the interest of a former client and whether the new representation is the "same or substantially related" to the representation of the former client. If so, the lawyer may not undertake the representation without the former client's consent. Where there is any doubt whether a matter is substantially related, or whether confidential information could be used to the disadvantage of the former client, a lawyer should decline the representation. See RI-46.

The new representation involves the ownership of the exact personal property previously awarded to the former client by the lawyer's efforts. The lawyer's efforts in the new representation would clearly be adverse to the former client's interests. See RI-137. Information obtained in the course of the divorce could be used to retain the property for the new client, to the disadvantage of the former client.

Therefore, unless the former client consents, the lawyer cannot undertake the subsequent representation.



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