MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2000-25
Conflict of Interest: Imputed Disqualification
Your inquiry raises the question whether Lawyer X may represent a father(Husband I) to attempt to modify the terms of a custody order over his and his ex-wife's (Wife) children, based on changed circumstances since the entry of the over two years ago, under the following circumstances:
Lawyer X represented Husband I in his divorce from his Wife and in the custody proceeding over the children. Apparently Wife had a relation-ship with a married her divorce, but this was not an issue in the divorce and Wife's paramour was not a witness during the divorce proceedings. The paramour eventually obtained a divorce and was represented by Lawyer Y. After Wife obtained her divorce, she married her paramour (Husband II) and her children began living with her and Husband II.
Custody proceedings involving the children followed. Husband II's deposition was taken in connection with those proceedings, and he also testified at a court hearing on behalf of Wife. Lawyer Y did have occasion to speak withWife and Husband II about the custody matter, but only to give some general information to them about the court where the custody action was pending, about the judges in the court and about Lawyer X. Lawyer Y did not represent Wife int he custody case.
Apparently at the custody proceeding several years ago the court expressed concern about providing time-sharing between Husband I and Wife because of the children's age. Husband I now is seeking to modify the custody order to increase the time the children spend with him based on the fact that they are now older. Some time after the custody proceeding, Lawyer X formed a partnership with Lawyer Y.
Under Rule 1.9 (Conflict of Interest: Former Client) Lawyer Y could not represent a client whose interests are materially adverse to a client of hers if the matter is the same or substantially related, nor could Lawyer Y use confidential information relating to that representation to the disadvantage of her former client.
Under Rule 1.10, a lawyer's disqualification under Rule 1.9 is imputed toall lawyers in the new firm in which a lawyer becomes associated, with certain exceptions. Rule 1.10(b), which was substantially revised, effective January 1,2000, 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 with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person unless.
1. the newly associated lawyer has acquired from the former client no information protected by Rules 1.6 and 1.9(b) that is material to the matter; or
2. the newly associated lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom. For purposes of this sub paragraph, a lawyer in a firm will be deemed to have been screened from any participation in the matter if:
1. the lawyer has been isolated from confidences, secrets, and material knowledge concerning the matter;
2. the lawyer has been isolated from all contact with the client or any agent, officer or employee of the client and any witnesses for or against the client;
3. the lawyer and the firm have been precluded from discussing with each other the matter and any information acquired from the client that is protected by Rules 1.6 and 1.9(b) and is material to the matter; and
4. the firm has taken affirmative steps to accomplish the foregoing.
The first issue to resolve is whether Lawyer Y previously represented a client in the same or substantially related matter whose interests are materially adverse to her new firm's client, Husband I. Clearly, Lawyer Y's prior representation of Husband II in his divorce is nether the same nor is it substantially related to the custody proceeding in question. However,from the facts given, it is not absolutely clear whether there was an attorney-client relationship between Lawyer Y and Husband II and Wife relating to the initial custody proceeding, as a result of their consulting with Lawyer Y with respect thereto, albeit regarding general matters. Whether an attorney-client relationship exists is a factual matter which we cannot decide.
The second issue is whether Lawyer Y acquired confidential information about Husband II and Wife (assuming a lawyer-client relation-ship existed) which is protected by Rule 1.9(b). Any information acquired in the course of representing a client must remain confidential and cannot be used to the client's disadvantage. If Lawyer Y received confidential information from Husband II and Wife which is or may be relevant in the custody proceeding, that would cause a conflict in Lawyer X's ability to represent Husband I, unless Lawyer Y is properly screened in the matter and receives no part of the fee from the representation. For example, the Committee has commented on the issue of potential conflict in cross-examining a former client. See Ethics Docket 92-42.In Ethics Docket 98-33 we said:
"An attorney who in the course of representing a client examines a former client as an adverse witness is likely to face a conflict that results in disqualification, absent appropriate consent."
Accordingly, unless it is absolutely clear that Lawyer Y received no confidential information from former client which could be used to their disadvantage in the custody proceeding, Lawyer X may not represent Husband I,absent consent from all clients, unless Lawyer Y is properly screened in the matter and receives no part of the fee from the representation.