Ethics
Representing Married, Former Clients at Divorce
In most instances, the prior
representation of a husband and wife will interfere with an attorney's
ability to represent one of the parties in a divorce
proceeding.
By Dean R. Dietrich
May an attorney who once provided legal
services for a husband and wife now provide divorce representation for
one of the spouses? What are examples of kinds of joint representation
of a husband and wife that would preclude future representation of one
of them (at least without former client consent) in a divorce?
Answer
If the husband and wife are former clients SCR
20:1.9 would apply. This rule provides:
"A lawyer who has formerly represented a client in a matter shall
not: (a) 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 in
writing after consultation; or (b) use information relating to the
representation to the disadvantage of the former client except as Rule
1.6 would permit with respect to a client or when the information has
become generally known."
Both the husband and wife would be considered former clients.
Therefore, the attorney could not represent one party in a substantially
related matter that is materially adverse to the interests of the other,
or use information the attorney acquired during the past representation
to the disadvantage of the other party.
Scrutinize Nature of Past Representation
This article is not a formal opinion of the Professional Ethics
Committee and is not to be relied upon as having been approved by the
Professional Ethics Committee. Attorneys with questions or professional
ethics issues may contact the Ethics Hotline at (800) 444-9404, ext.
6168; or (608) 250-6168 (all day Wednesday); and (608) 629-5721 on
Monday, Tuesday, Thursday, and Friday mornings.
Send written requests for Professional Ethics Committee opinions to
the committee c/o Keith Kaap, State Bar of Wisconsin, P.O. Box 7158,
Madison, WI 53707-7158.
Professional Ethics Committee opinions may be found online.
It is obvious there are limits on an attorney's ability to represent
one party in a divorce against the other party depending upon the nature
of the representation that had occurred in the past. Clearly, any
representation in the past that involved an asset that will be in
dispute in the divorce, such as the joint purchase of real estate, would
preclude the attorney from representing either party. Similarly, if the
prior representation included a discussion or gathering of information
about the assets of the husband and wife, such as estate planning
services or income tax consultation, the attorney would not be able to
represent one party against the other. It is also highly unlikely that
the attorney could represent one party against the other if the attorney
was involved in representing husband and wife in obtaining an asset or
suing for large sums of money that will be disputed in the divorce
proceeding, such as representing the husband and/or wife in a personal
injury lawsuit that has resulted in a large sum of monies being included
as a family asset.
There are other situations that also require close scrutiny and would
likely prohibit representation of one party in the divorce proceedings.
If the attorney represented the parties as an intermediary under SCR
20:2.2, in the formation of a business venture such as a limited
liability company (LLC), it is likely that a dispute will arise
regarding the ownership of the LLC and the attorney could not represent
either party due to the prohibitions of SCR
20:1.9(a) and (b).
Dean R. Dietrich
, Marquette 1977, of the Wausau firm of Ruder, Ware & Michler
L.L.S.C., is a member of the State Bar Professional Ethics
Committee.
There also are areas where the past representation should not
interfere with the representation of one party without consent. For
example, representing husband and wife in a landlord/tenant dispute
would not be substantially related so as to preclude representation of
one party in the divorce proceedings. Close scrutiny must be given to
the nature of the prior representation of the husband and wife to ensure
that the prior representation did not result in the attorney obtaining
information that could be used against the other party in the divorce
proceeding.
Conclusion
In most instances, the prior representation of husband and wife would
interfere with the ability of an attorney to represent one party in the
divorce proceeding. The passage of time between the prior representation
and the divorce representation may have an effect on the circumstances.
However, lawyers must be cautious that they are not embarking upon a
representation of one party that ultimately a court would review in a
motion to disqualify the attorney.
Wisconsin
Lawyer
