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    Wisconsin Lawyer
    September 01, 1999

    Wisconsin Lawyer September 1999: Ethics: Representing Married, Former Clients at Divorce

    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

    Client 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).

    DietrichDean 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.


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