MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2000-33
Conflict of Interest – Representation of Spouse of Former Client in Domestic Matter
You state that Lawyer was professionally introduced to Husband and Wife four years ago while representing Husband for personal injuries he suffered in an auto accident. You do not state whether that representation developed so that Wife was also a client in a consortium claim arising from that accident. However, whether Lawyer also formerly represented Wife is not relevant to your specific ethics inquiry in the view of this Committee. Litigation concerning that auto accident concluded two years ago.
With no other intervening contact, Wife now seeks divorce representation against Husband. Child custody is likely to be contested with Wife contending Husband to be unfit because of alcohol and/or drug abuse.
Lawyer recalls that during former representation of Husband, information was obtained which indicated possible drug and alcohol abuse. Lawyer had confronted Husband with the indication of alcohol abuse only, which Husband denied. None of the drug or alcohol abuse information was given in discovery and neither was that information communicated to Wife during the earlier representation.
Lawyer states he will not reveal any information concerning the possibility that Husband had earlier alcohol and/or drug abuse problems and will not use that information against former client. Lawyer inquires whether present domestic representation of Wife is ethically permissible. For the reasons that follow, this Committee believes that it is not.
Rule 1.9 of the Maryland Rules of Professional Conduct is applicable and reads:
"A lawyer who has formerly represented a client in a matter shall not thereafter:
- the lawyer reasonably believes the representation will not be adversely affected; and
- the client consents after consultation."
Rule 1.9 clearly imposes a qualified duty on a lawyer due to information obtained during a prior representation for the protection of a former client. Further, Rule 1.9 sets forth two separate prohibitions that may arise from former representation.
Under the circumstances presented, the critical information obtained during the former representation of Husband is that information which tends to prove Husband had alcohol and/or drug abuse problems at an earlier time than known to Wife.
If first apply subsection (a) to the inquiry, this Committee finds the former auto accident representation and newer domestic representation are not the "same matter." Both representation may be "substantially related" because the two client-lawyer relationships involve the same relevant client and also involve transactions that may reveal the Husband's critical information showing the former clients' pattern of conduct. This combination might result in disqualification of Lawyer on the theory that relevant confidences "materially adverse" to Husband could have been acquired by Lawyer. However, this Committee finds it unnecessary to reach the question as to whether the matter is the same or substantially related matter because we believe the lawyer is disqualified from the representation by reason of his knowledge of the information revealed above and his inability to provide complete representation of the wife in the domestic relations matter without using that information. Gov't of India v. Cook Industries, 569 F. 2d 373 (2nd Circuit, 1987), Satellite Financial Planning Corp. v. First Nat. Bank of Wilmington, 652 F. Supp. 1281 (D. Del, 1987)
In applying subsection (b), this Committee first finds the critical information, if used, would be disadvantageous to the former client. The critical information, having been obtained during the former representation is confidential after termination of the former representation and is not subject to any of the exceptions of Rule 1.6. Also, the critical information did not become "generally known" by being revealed during discovery or otherwise become part of the "public domain". (See comment to Rule 1.9) While Husband was told of information indicative of the possibility of earlier alcohol problems, Husband was not confronted regarding information of possible drug abuse.
Rule 1.9 is one of the conflict of interest rules which gives explicit assurance to a former client that confidential information obtained during representation will not have later adverse consequences. The Lawyer here is not relieved of his loyalty to the former client because information obtained during the earlier auto accident representation only tended to show the possibility of Husband's alcohol and/or drug abuse at that time. The Lawyer is not relieved because that abuse during that time was not admitted or factually determined to exist. Also, the Lawyer is not relieved of his duty of loyalty to the former client because Wife suggests present abuse by Husband. The conflict of interests here arises because Lawyer owes a duty of loyalty to the Wife to develop the information she provides about present abuse far back in time to show the unfitness of Husband. And, without Husband's consent, Lawyer can't reveal the information about past abuse. Further, to proceed with representation of Wife without use of the critical information appears violative of the dictates of another conflict of interest provisions, Rule 1.7(b).
That rule states:
"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:
- the lawyer reasonably believes the representation will not be adversely affected; and
- the client consents after consultation."
Therefore, this Committee finds that under the circumstances presented, Rule 1.9 prohibits representation of Wife without consent of the Husband after consultation that would reveal Wife's present allegation of abuse. To reveal information presently obtained from Wife to effect consultation with Husband without prior consent after consultation of Wife would appear to violate Rule 1.6 and 1.8(b). In pertinent part Rule 1.6(a) states:
"A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)."
In pertinent part Rule 1.8(b) states:
"A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation.
The factual circumstance here clearly present unsolvable problems of the proper order of full consultation with former client and Wife, or for that matter which consultation could take place first. Such is the nature of conflicts of interest.