Dec. 15, 2010 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears monthly in InsideTrack. The answers, offered by State Bar’s ethics counsel org tpierce wisbar Timothy Pierce, provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
I have been approached by a woman seeking representation in a divorce. In running a conflicts check, I found that I had represented her husband’s small business on several matters over the course of a few years. Can I represent the woman in the divorce?
Probably not. This situation presents a conflict if it is reasonable to assume that in the prior representation of the husband, the lawyer would have had access to information that would be relevant in the divorce, and thus the prior representation is substantially related to the present representation in which the lawyer is adverse to the former client. For example, it is almost always a conflict for a lawyer to do estate planning work for a couple and then to represent one spouse against the other in a divorce because the lawyer would have had access to information about the spouses' assets and their wishes with respect thereto. While this situation presents a conflict, it is important to remember that the Rules do not prohibit all adversity to former clients – conflicts only arise when the matters are the same or substantially related.
References: SCR 20:1.9; Wisconsin Ethics Opinion E-89-4; Burkes vs. Hales, 165 Wis. 2d 585, 478 N.W.2d 37(1991), and Mathias v. Mathias, 188 Wis. 2d 280, 525 N.W.2d 81 (1994).
For more information, visit the Ethics webpage on WisBar.