LEGAL ETHICS OPINION 1700 CONFLICT; REPRESENTATION OF WIFE IN
CHILD SUPPORT MATTER WHEN ATTORNEY'S
FORMER FIRM REPRESENTED HUSBAND IN
ORIGINAL CUSTODY CASE
You have presented a hypothetical situation in which Attorney B
represents a wife in a proceeding to reduce child support when
Attorney A, at Attorney B's former firm represented husband in the
original child support case. Attorney A advises Attorney B that
the husband objects to Attorney B's representation of the wife.
Subsequently, Attorney B takes action to effect a change of venue,
with no notification to Attorney A. Attorney A then moves to have
Attorney B disqualified and to have case returned to original
venue. Attorney B, without obtaining dates from Attorney A, files
a notice of hearing under the name of his associate and has a
subpoena duces tecum issued for service on the husband in a
jurisdiction outside of Virginia, also through his associate.
Under the facts you have presented, you have asked the committee to
opine as to the propriety of Attorney B's 1) representation of the
wife when husband was represented by Attorney A while a law partner
with Attorney B; 2) obtaining a transfer of venue without
notification to Attorney A; and 3) attempting to get service on the
husband in a foreign jurisdiction. Also, you have inquired whether
Attorney B's ethical obligations are altered by the fact that
Attorney B acted through his associate.
The appropriate and controlling disciplinary rules relative to your
inquiry are DR 4-101(B) which requires an attorney to protect
client confidences and secrets; DR 5-105(D) which prohibits a
successive employment adverse to a former client if the matters are
substantially related unless the former client consents after
disclosure; DR 5-105(E) which imputes the conflict of one attorney
to all other attorneys in the same law firm; and DR 1-102(A)(4)
which prohibits an attorney from engaging in conduct involving
fraud, dishonesty, misrepresentation or deceit reflecting adversely
on the lawyer's fitness to practice law.
The committee assumes that Attorney B's representation of wife in
a proceeding to reduce child support is substantially related to
the child support proceeding in which Attorney A represented the
husband while B was a member of the old firm.
The committee has previously opined that a lawyer who has left a
law firm may subsequently represent a client adverse to a client of
the former law firm, if the lawyer can rebut the presumption of
shared confidences and secrets. Legal Ethics Opinions 993, 1043,
1082, 1085 and 1428. Thus, for example, even if the client
represented by an attorney's former law firm is unwilling to waive
any conflict, the attorney may nevertheless represent a client
adverse to his former law firm's client in the same or
substantially related matter, if the attorney had no knowledge of
and did not actively participate in the handling of the case with
the old law firm. Legal Ethics Opinion 993 (attorney who left law
firm which represented plaintiff in a real estate matter could
accept representation of defendant in same matter because attorney
had no knowledge of and did not actively participate in former law
firm's handling of plaintiff's case even without waiver of conflict
by plaintiff).
In Legal Ethics Opinion 1629, the committee opined that a lawyer
who left a firm in which he was actively engaged in the defense of
medical malpractice cases to join a firm which represented medical
malpractice plaintiffs could not pursue any plaintiffs' cases
involving a doctor represented by the former firm in which the
attorney was involved or had participated. However, if the
attorney had not participated in the defense of a doctor and did
not receive any confidential information while employed at the
former firm, the attorney could represent a plaintiff adverse to a
defendant physician represented by his former law firm.
In the facts you present, the committee believes that whether
Attorney B's continued representation of wife is proper depends on
whether he participated in the representation of husband while
employed at the former firm or whether Attorney B acquired and
confidences and secrets relative to husband's case. Since you do
not indicate whether these circumstances exist in your
hypothetical, the committee cannot reach a conclusion as to whether
Attorney B's continued representation of wife is proper.
Your second inquiry concerns the failure of Attorney B to notify
Attorney A of an action to transfer venue and filing a notice of
hearing without obtaining available dates from Attorney A. The
committee believes that Attorney B's conduct is governed by the
applicable Rules of Court, local rules, custom and professional
courtesy, but not the Code of Professional Responsibility, unless
it can be shown that Attorney B intentionally or habitually
violated an established rule of procedure or disregarded a standing
rule of a tribunal. DR 7-105(A); DR 7-105(C)(5).
Your third inquiry involves the propriety of Attorney B having a
subpoena duces tecum served on the husband outside of Virginia.
In Legal Ethics Opinion 1495 the committee opined that DR 1-
102(A)(4) is violated where a Virginia attorney requests a Virginia
court to issue a subpoena duces tecum to obtain documents from an
out-of-state individual, knowing that the subpoena is unenforceable
unless the witness has agreed to accept service. Assuming that
Attorney B knows that a subpoena duces tecum served on an out-of-
state individual is not enforceable, and further assuming that the
documents served on the individual threaten contempt for non-
compliance and the husband has not accepted service, Attorney B's
conduct may be in violation of DR 1-102(A)(4).
[DR 1-102(A)(4); DR 4-101(B); DR 5-105(D),(E); DR 7-105(A),(C)(5);
LEOs 993, 1043, 1082, 1085, 1428, 1629
Committee Opinion
June 24, 1997
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