LEO #1652 RECONSIDERATION OF OPINION ISSUED 09/12/95
REVOCABLE CONSENT; ADVERSE CLIENTS; CLIENT OBJECTING TO
ATTORNEY'S REPRESENTATION OF ADVERSE CLIENT AFTER HAVING
EARLIER SIGNED WAIVER THAT THERE WAS NO OBJECTION TO
REPRESENTATION OF ADVERSE CLIENT
I am writing in response to your letter dated June 14, 1995,
requesting an informal advisory opinion from the Virginia State Bar
Standing Committee on Legal Ethics ("committee"). As you know, the
committee issued an advisory opinion on September 12, 1995, in
response to your inquiry. On June 11, 1996, the committee
reconsidered the opinion on the issue of whether a client may
withdraw at any time consent previously given to a conflict.
Because the statement made in the prior opinion may be overbroad,
the committee concluded that this matter requires clarification,
and overrules the prior opinion in that regard.
You have presented a hypothetical situation in which Attorney A, in
1986, began representing Client with regard to alleged arrearages
by her ex-husband in the payment of sums due under a property
settlement agreement which had previously been ratified as part of
the divorce proceeding between Client and ex-husband. Attorney A
instituted contempt proceedings which were still pending in April,
1987. At that time, ex-husband requested that Attorney A represent
him, as co-counsel with Attorney B, on DUI and refusal charges. In
the presence of Attorneys A and B, ex-husband was informed of the
conflict and signed a waiver stating he had no objection to
Attorney A's continued representation of Client. Ex-husband agreed
orally to not object in the future to A's representation of Client.
Client also executed a waiver of conflict acknowledging that the
retainer paid by ex-husband to Attorney A would not be available to
apply toward arrearages owed by ex-husband to Client.
In March, 1992, Attorney A was still representing Client and
attempting to collect arrearages from ex-husband. When criminal
and traffic charges were placed against ex-husband, Client again
permitted Attorney A to represent ex-husband. Client signed a
waiver acknowledging the potential conflicts, including the fact
that the retainer paid by ex-husband to Attorney A would not be
available to satisfy, in part, the arrearages sought by Client.
Client also acknowledged that Attorney A could take no actions on
Client's behalf against ex-husband without ex-husband's consent
until the charges were resolved. Ex-husband again signed a waiver
of the "potential conflict of interest" and authorized Attorney A
to "take whatever actions he deems necessary" against ex-husband
regarding the arrearage claim while representing him in the
criminal matters. Client is continuing to collect the alleged sums
due from ex-husband, and ex-husband now objects to Attorney A's
continued representation of Client.
You ask the committee to opine whether Attorney A may continue to
represent Client (the former wife) in the contempt proceeding
against her former husband to compel payment of arrearages owed
Client under their property settlement agreement over ex-husband's
objection to such representation.
On the facts you presented, Attorney A's representation of ex-
husband was concluded in 1992. Ex-husband is, therefore, a former
client of Attorney A. The controlling disciplinary rules pertinent
to your inquiry are DR 5-105(D), which bars representation adverse
to a former client in the same or a substantially related matter
without consent from the former client, and DR 4-101(B), which
prohibits the use of a client's confidences or secrets to the
disadvantage of the client, or for the advantage of a third person,
unless the client consents. The duty of confidentiality applies
equally to existing clients and to former clients. EC 4-6.
Whether current representation adverse to a former client is
"substantially related" to the former representation is a fact-
specific inquiry requiring a case-by-case determination. LEO #1613
addressed "substantial relatedness," as follows:
[T]he committee has not established a precise test for
substantial relatedness under DR 5-105(D). The
committee, however, has previously declined to find
substantial relatedness in instances that did not involve
either the same facts (LEO #1473), the same parties (LEOs
#1279, #1516), or the same subject matter (LEOs #1399,
#1456).
Courts addressing the issue have stated that substantial
relatedness exists where the matters or issues raised in the
current and the former representation are essentially the same,
arise from substantially the same facts, or are byproducts of the
same transaction, Tessier v. Plastic Surgery Specialists, Inc., 731
F. Supp. 724 (E.D. Va. 1990), or entail virtually a congruence of
issues or a patently clear relationship in subject matter. In re
Stokes, 156 B.R. 181 (Bkr. E.D.Va. 1993). See also Pasquale v.
Colasanto, 14 Va. Cir. 54 (1988). On the facts presented,
the committee is of the opinion that Attorney A's current
representation of Client against ex-husband in a contempt
proceeding to compel payment of arrearages is not substantially
related to his former representation of ex-husband in defending
traffic charges.
The committee observes that DR 5-105(D)'s proscription is rooted in
DR 4-101(B)'s mandate to safeguard the confidences and secrets of
clients, both existing and former. Tessier expresses the
relationship between DR 5-105(D) and DR 4-101(B), at 728:
The problem implicated by successive representation is
the potential for the use of confidences gained from a
former client to the detriment of that client or the
failure to use information favorable to the present
client in order to protect the confidentiality of the
former client.
If substantial relatedness exists between the matter in former
representation and the matter in current representation adverse to
the former client, there is a presumption that the attorney gained
confidences and secrets in the former representation which could be
used to the former client's disadvantage in the current
representation. Rogers v. Pittston Co., 800 F.2d 350, 353-54 (W.D.
Va. 1992), aff'd without op., 996 F.2d 1212 (4th Cir. 1993). There
is no presumption, however, if the matters are not substantially
related. See Pasquale v. Colasanto, supra.
In LEO #622 the committee opined that it was permissible for an
attorney to represent a creditor seeking to collect a debt from the
attorney's former client when the matters were not substantially
related and the collection matter did not implicate confidences and
secrets gained from the former client. On the facts represented
the committee cannot determine whether Attorney A would have gained
confidences or secrets from ex-husband that could be used to his
disadvantage in Attorney A's representation of Client in the
contempt proceeding.
The Committee notes, however, that since ex-husband is the subject
of a contempt proceeding, ex-husband's earnings, employment,
ability to earn, assets, use of earnings, lifestyle and the like
could be material to Attorney A's representation of Client against
ex-husband. To the extent Attorney A acquired information about
those factors in his former representation of ex-husband, they
would be confidences and secrets which Attorney A could not use to
the disadvantage of ex-husband without ex-husband's consent.
Moreover, ex-husband's refusal to consent would adversely affect
the character of Attorney A's representation of Client. See DR 7-
101(A)(1) and (3).
On the facts presented, ex-husband consented to Attorney A's
simultaneous representation of Client and thereafter objected to
Attorney A's representation of Client following Attorney A's
representation of ex-husband. It is doubtful that Attorney A's
consent from ex-husband, as well as Client, cured Attorney A's
conflict of interest in his simultaneous representation of both.
DR 5-105(C); see LEO #1408. In any event, consent is not a
contractual obligation and a client under certain circumstances may
withdraw the consent. See, e.g., LEO #1354; Commercial & Sav. Bank
v. Brundige, 5 Va. Cir 33, 34 (1981).
Based on the foregoing, it is the opinion of the committee that
Attorney A has an incurable conflict and must withdraw from the
representation of Client.
[DR 4-101(B), 5-105(D), 7-101(A)(1) & (3); EC 4-6; LEOs 622 1275,
1354, 1399, 1408, 1456, 1473, 1516, 1613; Tessier v. Plastic
Surgery Specialists, Inc., 731 F. Supp. 724 (E.D. Va. 1990); In re
Stokes, 156 B.R. 181 (Bkr. E.D.Va. 1993); Pasquale v. Colasanto, 14
Va. Cir. 54 (1988); Rogers v. Pittston Co., 800 F.2d 350, 353-54
(W.D. Va. 1992), aff'd without op., 996 F.2d 1212 (4th Cir. 1993);
Commercial & Sav. Bank v. Brundige, 5 Va. Cir 33, 34 (1981)]
Committee Opinion
September 12, 1996
Reconsidered and Revised
July 8, 1996
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