October 21, 1996
Where a lawyer who represented a client in a divorce 30 years ago has died, and the former client now seeks a divorce from a different spouse, the deceased lawyer's law firm is not prohibited from representing the spouse in the second divorce where (a) there has been no other contact between the family members and the law firm except on the first divorce matter, (b) the current divorce involves a different spouse, (c) the health and financial situation of the former client have significantly changed since the first divorce, and (d) divorce law has changed significantly in the interim period.
References: MRPC 1.9(a) and (c); RI-35, RI-46, RI-95, RI-174, RI-192, RI-248.
Client and ward were married in 1992. In 1995 the client petitioned the probate court for appointment of a conservator and guardian for the ward who was diagnosed with Alzheimer's disease. In 1996 the client was sued for divorce on behalf of the ward by the bank appointed conservator and the child appointed guardian.
The ward had been represented in a divorce from a previous spouse in 1967, and in an uncontested post-judgment matter arising from the divorce in 1985, by a lawyer who died in 1993. The deceased lawyer's firm has been asked by the client to represent her in the current divorce proceedings.
MRPC 1.9(a) and (c) state:
"(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.
". . .
"(c) A lawyer who has formerly represented a client in a matter of 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 relation to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."
Under MRPC 1.9, the triggering standard is whether the former and current matters are "substantially related" and whether there is protected information. MRPC 1.9 would also be applicable in the current inquiry if some other lawyer still with the firm had assisted in the first divorce representation or uses or discloses protected information. The Comment to MRPC 1.9 states in pertinent part:
"The scope of a 'matter' for purposes of this rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other client s with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client . . . . The underlying questions is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question." Emphasis added.
Several ethics opinions have discussed whether matters are "substantially related." A subsequent representation is substantially related to a former representation if (a) the subject matter of the representation is the same, (b) the factual or legal issues overlap, or (c) there is a likelihood that confidential information obtained in the former representation will have relevance to the subsequent representation. RI-46, RI-95. Hazard and Hodes describe the standard as follows:
"As to 'substantial relationship' most modern cases focus on the factual contours of the transactions or matters in question, and ask whether the affected lawyer would have or reasonably could have learned confidential information in the first representation that would be of significance in the second. One of the best known examples of this approach is the en banc opinion in Novo Terapeutisk Laboratorium A/S v Baxter Travenol Laboratories Inc, 607 F2d 186 (7th Cir 1979), proposing a three-step test for 'substantial relatedness.' First, the court must try to recreate the actual scope of the prior representation; what legal work was done, for whom, on what timetable, and so forth. Second, the court will ask what confidential information a reasonable client probably would have given to a reasonable lawyer in the course of such representation. Third, the court will presume that the former client did share this information with the former lawyer, and ask whether this information is relevant to the second (adverse) representation, or whether knowing this information would give the lawyer and her new client an advantage." The Law of Lawyering, 1996 Supplement, The Michie Company, p 293.
To apply this test to the current facts requires looking at the grounds underlying the first divorce action, the evidence collected, the arguments made, and the results obtained. This review would then be compared to the grounds alleged in the new case, the response contemplated, the areas which will be in dispute and the evidence likely to be required to resolve them, and the goal to be achieved.
In the current inquiry, the fact that the inquiring law firm represented the ward in one divorce action and contemplates representation of the ward's spouse in the second divorce is not sufficient, by itself, to conclude that the matters are "substantially related." The mere fact that the causes of action are both divorce, and one party is the same, is not sufficient. In RI-192 a lawyer had previously defended a company on charges of marital and religious discrimination, and contemplated representing a former employee against the company in a sex discrimination case. The opinion reasoned:
"The fact that both representations involved discrimination claims does not in itself determine whether the matters are 'substantially related'. For example, if the legal sufficiency of the company policy was at issue in both representations, they would be deemed substantially related. If, however, the legal issue in the former representation was whether the acts constituted discrimination, and the issue in the prospective representation is whether the company followed its own policy, the matters are not substantially related."
In RI-174 a lawyer obtained a marital property settlement which awarded certain personal property to the former client. The personal property was in the custody of a third party, and was claimed by the third party, the former client and the former client's spouse. The opinion concluded that the lawyer could not represent the interests of the third party, whose claim was adverse to the former client, because:
"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."
In RI-35 a lawyer served a corporate client as private lawyer and inside counsel for over 30 years, then served the corporation on retainer for another five years. The lawyer represented the corporation in its relations with distributors, participated in board meetings, supervised disciplinary actions of individual distributors, drafted rules of conduct for distributors, and was principal coordinator of all corporation litigation matters. The lawyer contemplated representation of a distributor. The opinion reasoned:
"Although the present and former clients in this inquiry are not currently involved in adversarial litigation, the close interaction of the association and the corporation provides numerous opportunities for future disagreement. Not only did the lawyer represent and coordinate the representation of the corporation in litigation matters, but as a member of the management committee and the board of directors the lawyer was directly involved in the day-to-day business organization of the corporation. Further, the lawyer was directly involved in the business interaction between the corporation and the association, issues that the lawyer will face again directly as counsel for the new client. The lawyer's extensive knowledge of the private and confidential matters of the corporation's business necessarily provides the lawyer with greater insight and understanding of the corporation's actions, and is certain to color the lawyer's thought processes while working with the association.
In determining whether protected information would be abridged, in the RI-192 employment discrimination matters it was observed that if the lawyer learned in the prior representation information regarding the company's attitude toward settling discrimination cases, background concerning the development of the challenged corporate policy, etc., which is beneficial to the prospective client, MRPC 1.9(c) would prohibit its use.
In RI-248 a lawyer jointly represented a divorced couple as tort codefendants in a post-judgment proceeding and settlement plan to preclude a de facto forfeiture of real estate now titled to the ex-wife. As part of this settlement plan, the ex-husband divested retirement plan assets and incurred tax liabilities in order to fund part of the settlement. Prior to this engagement, the lawyer had also represented the ex-wife in land contract forfeiture proceedings, regarding unrelated real estate. The lawyer wished to represent the ex-husband on a equity claim against the ex-wife's real estate which was, in effect, saved by the contribution of the husband's retirement plan assets.
"Here, the prospective representation will certainly involve the lawyer's discussions with the prior joint clients, as the settlement plan was negotiated and eventually funded. The prospective representation will also directly concern the ex-husband's funding of that settlement, which would likely have involved discussions between the joint clients and the lawyer on that topic. For purposes of MRPC 1.9, it is irrelevant that the joint clients were privy to these discussions and to the "protected information." So long as the same information is non-public, it continues as "protected information" as to both of the former joint clients, even if one of them is no longer represented by the same lawyer. Based on the facts presented, it thus appears likely that protected information of the former client will be revealed, or used adversely to the former client, thus triggering MRPC 1.9(c), absent a waiver by the former client."
In the current inquiry we have been provided with no information about the substance of the first divorce or the merits of the current divorce. The facts do reveal that the first divorce representation occurred in 1967, and an uncontested post-judgment matter was resolved in 1985. There has been no other contact with the family members other than those instances. It is also clear from the facts that the current divorce involves a different spouse, and that the health and financial situation of the ward have significantly changed. Divorce law has changed significantly in the interim period. It is improbable under the facts available that whatever was at stake in the 1967 and 1985 representations will be "substantially related" or even relevant to the 1996 divorce.