MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-13
Whether there is a conflict of interest where an attorney represents a spouse (the wife) in a collection matter based on a withdrawn divorce while representing the other spouse (the husband) in a contract dispute with that spouse’s sibling.
Your inquiry dated May 13, 2003, has been considered by the Committee on Ethics of the Maryland State Bar Association, and I have been assigned to respond to you on behalf of the Committee.
Your inquiry and attached information reflect that you are involved in two matters in litigation. In one, you are defending a person (the wife) who was sued by a law firm seeking to collect fees it claims are due it for representation of the person in a divorce proceeding. The divorce never occurred as the litigation terminated voluntarily. In the second, you are representing the spouse (the husband) of the person you are defending in the first matter. This second case involves a contract dispute between siblings who are in business together. You do not indicate whether you represented the husband in the divorce. During the course of both matters that are currently in litigation, the court suggested that a conflict might exist and asked you to seek the advice of this Committee.
The Rules of Professional Conduct prohibit certain representational conflicts of interest as antithetical to the interests of justice. These conflicts include representing a person with interests adverse to: another client, the lawyer’s own interests, a former client, or the lawyer’s obligations to a third party. Rules 1.7 and 1.9. In almost all instances these conflicts can be waived when each client (or former client) consents to the representation after having been informed of the conflict and its potential effects upon the representation. Rules 1.7 and 1.9. In describing the facts relevant to your question, you do not mention whether either husband or wife consented to your representation of the other. Accordingly, we assume that you have not sought or obtained their consent.
Based on the facts you relate, neither husband nor wife seem to have interests currently or directly adverse. Thus, Rule 1.7(a) does not apply. Neither is your former client, and you relate no facts that suggest that your personal interests would be in any way involved, or that you have obligations to a third person that might adversely affect your representation. For these reasons, Rule 1.7(b) and Rule 1.9 do not apply. Even had you been the husband’s lawyer during the divorce, you are not representing the wife in a matter where her interests are materially adverse to the interests of your former client. As a result, Rule 1.9(a) does not apply.
While the foregoing affirms that no conflict exists with respect to your representation of either husband or wife in the pending litigation, Rule 1.7(b) confirms that a representational conflict exists where your representation of one of these clients may be limited by your responsibilities to the other. Similarly, Rule 1.9(b) prohibits a lawyer from using information gained while representing a client to that client’s disadvantage.
Rule 1.9. Conflict of interest: Former client.
A lawyer who has formerly represented a client in a matter shall not thereafter:
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- 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 had become generally know.
While there are no per se prohibitions on your representing both husband and wife under the scenario you describe, the interests each have regarding information that may have been or which will be disclosed to you suggest that you scrutinize carefully the requirements of your representation and whether its demands can be met while maintaining the confidentiality that each client expects and the rules require.
We trust the foregoing is responsive to your inquiry.