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Vol. 72, No. 9, September 1999 |
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
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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.
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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.
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