LEO: Confidentiality - Conflict of Interest LE Op. 1139
Confidentiality - Conflict of Interest - Divorce - Former Client:
Attorney Joining Law Firm and Partner Representing Client in
Action Against Former Client.
October 18, 1988
You have advised that Attorney A represented wife in a divorce action
against husband #2 in 1983. In 1984 wife married husband #3. In 1987
Attorney A and Attorney B formed a partnership for the practice of law.
Now husband #3 has retained Attorney B to file an action for divorce
against wife on fault grounds.
You wish to know whether it is improper for Attorney B to continue the
representation of husband #3.
Disciplinary Rule 5-105(D) [ DR:5-105] provides that an attorney who
has represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter if the interest
of that person is adverse in any material respect to the interest of the
former client, except with the former client's consent after full and
Although Attorney A had represented wife in a prior divorce action
against husband #2, the Committee believes that the current representation
by Attorney B of husband #3 in a divorce action against wife is not
substantially related to the former divorce action in which Attorney A
represented wife. If it involves a completely different set of facts and
circumstances, and is in no way related to the prior divorce proceeding,
the representation in the current matter would not be improper simply
because Attorney A represented wife in the earlier divorce action.
The Committee would direct your attention to LE Op. 1065, which involved
an attorney who had previously represented a client in a "CON" application
for a fixed MRI unit and who, after joining another law firm, was
subsequently employed to represent another client in a "CON" application
for a mobile MRI unit. While he was representing his present client in a "
CON" application, his former client was being represented by another firm
for the same. In this instance, the Committee was of the opinion that the
two matters were not substantially related merely because of representing
a different client in its attempt to show cause for a mobile MRI unit at
Also, Attorney A should be mindful of his continuing obligation to his
former client to preserve the confidences and secrets gained from prior
representation. (See DR:4-101(A) and (B)) It would also be wise for the
attorneys not to discuss the current matter as a precaution.
The Committee would therefore opine that it is ethically permissible for
Attorney B to continue representing husband #3 in a divorce proceeding
against attorney's former client, if the matters are separate and are not
substantially related. There is no basis for a conflict per se under the
facts you have presented merely because a party to the current action was
also a party to the previous, separate action. However, the representation
does require further inquiry to determine whether related issues arose in
the earlier divorce action which might render the current representation
improper. (See LE Op. 888)
Committee Opinion October 18, 1988