Ethics Opinions

Opinion No. 76-12

Summary: A lawyer who has represented a couple in proceedings to adopt the wife's child by a prior marriage may properly represent the wife two years later in a divorce action against the husband, unless the husband can show that in connection with the adoption proceedings the lawyer gained confidential or secret information which would be disadvantageous to him or advantageous to the wife, in the divorce proceeding.

Facts: W and her second husband, H, consulted Attorney A with regard to adoption by the couple of C, W's child by her first husband. A explained to H and W the consequences of the adoption, especially the termination of any possible claim against the child's natural father for support, and the consequent assumption of all support obligations by H. The natural father having consented to the adoption, the adoption proceeded routinely. Attorney A required no further information from the parties other than the facts necessary to complete the usual adoption petition. Less than one year later, H and W separated. Seeking a divorce, W wishes Attorney A to represent her. H's attorney, however, has objected, saying that because the amount of child support will be disputed, the prior attorney should not represent either party. H's present attorney raises no question concerning the validity of the adoption, or the acquiring by Attorney A of confidential information during his representation of the parties in the adoption proceedings.

Discussion: In Opinion 75-7, we held that a lawyer who had previously represented a husband in prodeedings relating to his first wife, presumably involving some aspect of his first marriage, should not represent the husband's second wife after their divorce in matters presumably relating to support. It appeared likely to us that the lawyer, while representing the divorced second wife, either would be using information disclosed to him in confidence by the husband in the prior proceeding, or would appear to be doing so in the view of the husband.
In the present case, we do not believe that a substantial relationship exists between the subject matter of the former representation of the husband in the adoption proceedings and the representation of the wife in the later divorce action. Information obtained from the husband during the adoption proceedings is not likely to be relevant in the subsequent divorce proceedings. We therefore see no reason on these facts, why Attorney A is necessarily precluded, under DR 4-101(B), which requires attorneys to preserve the confidences and secrets of a client, from representing W in the subsequent divorce proceedings.
We would note, however, that if the husband could show that in the course of the earlier adoption proceedings the lawyer had gained any confidential or secret information which would be disadvantageous to him or advantageous to the wife in the divorce proceeding, the lawyer should not undertake to represent the wife in the divorce action unless the husband consented after full disclosure. In such a case, neither the husband nor the wife could expect the lawyer both to represent the wife zealously in the divorce action (as required by DR 7-101) and to preserve the confidences and secrets of his former client, the husband (as required by DR 4-101). In the case before us, we note that the husband's attorney in the divorce action raises no question concerning the acquiring by Attorney A of confidential information from the husband--the existence of which (if there had been any confidential communications) is of course as well known to the husband as to Attorney A.
We therefore conclude that Attorney A may ethically continue to represent the wife in the divorce action, and the fact that the husband has not consented is, on the facts before us, irrelevant.


Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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