Ethics Opinions

Opinion No. 77-2

February 1977

Summary: A lawyer may properly represent a wife in a domestic proceeding against her husband, even though the husband was a former client, if the subject matter of the second proceeding is not substantially related to the subject matter of the earlier proceeding in which the lawyer had represented the husband.

Facts: Attorney A represented a husband in a workmen's compensation proceeding which concluded in a lump sum settlement approximately 1 1/2 years ago when A was a member of a law firm. A has not represented the husband since that time. Now the wife has approached A to represent her in a domestic matter against the husband, and the husband has filed a Complaint for Divorce against the wife. A asks whether he may now represent the wife in the domestic matter.
Discussion: Opinions 75-7 and 76-12 have dealt with the issues arising in the above situation where we applied DR 4-101(B)(1)(2) and (3), providing that "... a lawyer shall not knowingly ... reveal a secret or confidence of his client to the disadvantage of the client (or) use such secret or confidence of the client to the advantage of a third person ... ." In Opinion 75-7 we concluded that the word "client" used in DR 4-101(B) includes a former client as well as a present or continuing client. We also considered EC 4-6, stating that the duty to preserve secrets and confidences of a client continues after termination of employment of an attorney, and we applied Canon 9 with its principle that a lawyer should avoid even the appearance of professional impropriety.
In Opinion 76-14, we stated that a lawyer may not oppose a former client in behalf of another client in a matter which is substantially related to the former subject matter. This is because of the danger that the lawyer may intentionally or inadvertently use a former client's secret or confidence to the former client's disadvantage. We also, in this opinion, applied DR 5-105(A), holding that A may not accept such employment if the former client would be thus adversely affected.
In Opinion 76-14 it was the committee's opinion that a bankruptcy matter involving the complete financial condition of the husband was substantially related to a subsequent divorce proceeding. But in the absence of special circumstances, we would assume that any confidential matters involved in obtaining a lump sum settlement in a workmen's compensation matter (which is a matter of record in the files of the Industrial Accident Board) would not be substantially related to any of the matters involved in the current domestic matters in which the lawyer is now representing the wife. On this assumption, his current representation of the wife at her request is proper, and there is no need for him to secure the consent of the husband as well.

Permission to publish granted by the Board of Delegates, 1977. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.