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

adequate disclosure.


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

another facility.


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