MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-33
Conflicts - Attorney and secretary switching firms involved in domestic litigation
You indicate that Attorney A represented the husband concerning negotiations for a separation agreement and divorce proceedings, which concluded in 1983. In 1985, the wife hired Attorney B to pursue a claim for increase in alimony. Attorney A represented the husband and a settlement was reached. Thereafter in 1986, Attorneys A and B became partners in the practice of law. Following the initiation of that relationship, the wife hired Attorney X, seeking another modification to alimony. Attorney A and the firm represented the husband in that proceeding, which action was dismissed by the court in 1987. Attorney X did not raise any objection to Attorney A and the firm representing the husband at that time. We think it curious that no initial objection was made, but we are not supplied with enough facts to deal with that issue. Approximately one year later, (1988), Attorney X representing the wife, filed another claim for increase in alimony. Attorney A's firm continues to represent the husband and on this occasion, Attorney X has objected, alleging that A and the firm have a conflict of interest. Additionally, Attorney X is making objection to the firm representing the husband, since the firm has employed B's previous secretary, who was so employed while B represented the wife.
The conflict of interest question is largely answered by the provisions of Rule 1.10(b) of the Rules of Professional Conduct which provides as follows:
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.
Under this rule, the new firm will be disqualified from representing the husband (a) if B represented the wife in the same or a substantially related matter where interests were materially adverse and (b) that Attorney B acquired protected information that is material to the matter. There seems little question that the issue of increase in alimony is the same contested subject matter at issue when A and B were on opposite sides, thus would qualify as "the same or substantially related matter." It is also clear that the interests of husband and wife, while represented by A and B, were materially adverse. Even though we find that the present alimony proceeding is a related matter, and that the interest of the clients were materially adverse when represented by A and B, such may not disqualify the present firm from representing the husband, if Attorney B did not acquire protected information that is material to the alimony modification proceeding. On the other hand, if such protected material information was secured by Attorney B, then the firm is disqualified from representing the husband under the requirements of Rule 1.10(b). In that connection, Attorney B will have to determine if he acquired protected material information which is now relevant, or material to the present alimony modification proceedings. This is a factual question which this Committee cannot determine, thus must be decided by Attorney B and the firm with the guidance provided by this Opinion.
References: Rule 1.10(b)