MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-20
Conflicts Representing Associate in Domestic Case Against Prior DWI Client
You request an opinion as to whether your firm can represent an associate ("Associate") in a divorce/child custody action(s) against the Associate's spouse ("Spouse"). You indicate that your firm had represented the Spouse in connection with a driving while intoxicated charge, which included preliminary counseling and an entry of appearance. You further state that your firm's appearance was withdrawn prior to trial, and that the Spouse was ultimately found guilty of the charge. You indicate that in the divorce/child custody action, your firm would inform the Court of the Spouse's arrest, conviction and sentencing for the driving while intoxicated charge, but that "no other information obtained during [your] firm's prior representation of Spouse" would be used or introduced against the Spouse.
The Committee believes that the answer to your inquiry is controlled by Rule 1.9 of the Maryland Rules of Professional Conduct, which provides:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(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 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.
It does not appear to the Committee that the divorce/child custody action in which your firm proposes to represent the Associate is the same matter, or a matter substantially related to, the representation of Spouse in the driving while intoxicated matter. Therefore, the prohibition contained in Rule 1.9(a) does not appear to be applicable.
More troublesome concerns, however, are posed by Rule 1.9(b). You indicate in your letter that no information obtained during your firm's representation of the Spouse will be introduced at the divorce/child custody proceeding except that the court would be informed of the Spouse's arrest, conviction and sentencing in the driving while intoxicated charge. Your letter indicates that the information set forth above has "become generally known." If so, its disclosure would not be prohibited by the Rule.
Problems would arise if there was other information divulged by Spouse to your firm during its representation of Spouse which a) has not become generally known, and b) is relevant to the divorce/child custody proceeding. Under those circumstances, your, firm would not be able to use that information against the Spouse in the divorce/child custody proceeding, nor would your firm be permitted to divulge that information to Associate. If such information would be supportive of the Associate's position in the divorce/child custody proceeding, your firm's inability to use it may prevent your firm from acting with the "reasonable diligence" required by Rule 1.3'.
In summary, it is the Committee's opinion that your 'firm may ethically represent Associate in the divorce/child custody proceeding unless your firm obtained information during its representation of Spouse which did not become generally known, and would support • Associate's position in the divorce/child custody proceeding. Under those circumstances, Rule 1.3 would appear to prevent your firm representing Associate.
References: Maryland Rule of Professional Conduct 1.9