Opinion #156. Representing One Party in Divorce After Being Contacted by Both Parties

Issued by the Professional Ethics Commission

Date Issued: February 5, 1997

Question

Husband and Wife independently contact the law office of Attorney Q to set up appointments to discuss a divorce. In the process of the initial telephone conversation with a staff member each states that he/she does not want the fact he/she is requesting an appointment seeking representation regarding his/her marital situation to be disclosed to the other. The lawyer is briefed on these conversations when she returns to the office. Under what conditions, if any, can she represent either party? It is assumed that neither party gives consent for the lawyer to represent the adversary.

Discussion

While the mere fact that adversaries contact the same lawyer and request representation does not limit the ability of the lawyer to select whom she will represent, the problem raised by the present question centers on the limitations set forth in Rule 3.6(h)(1):

Except as permitted by these rules or as required by law or by order of court, a lawyer shall not, without the informed written consent of the client, knowingly reveal a confidence or secret of the client; use such a confidence or secret to the disadvantage of the client; or use such confidence or secret to the advantage of the lawyer or a third person.

The problem raised by the inquiry cannot be avoided by the fact that the lawyer had not established a formal attorney‑client relationship with either person at the time she received the information. In Opinion 61 this Commission concluded that even if under contract law an attorney‑client relationship had not been established, certain obligations imposed by the Bar Rules toward “clients” apply. Thus, under the principles set forth in Opinion 61, if the lawyer or her staff has obtained secrets or confidential information through these telephone conversations, she cannot represent either party. This conclusion is not altered by the fact the lawyer’s staff did not solicit the information.

Of course, there remains the question as to whether the information that was disclosed was in fact “confidential” or “secret”. Rule 3.6(h)(5) provides some assistance. “Confidence” includes communications traditionally protected by the attorney‑client privilege, but “secret” expands the set of protected communications to include “other information obtained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.”

Thus, a “secret” is not limited to the content of a communication. Particularly in domestic relations cases, which is the context in which the present inquiry arises, the mere fact that an attempt was made to communicate with an attorney about a divorce may be a secret. Furthermore, to a substantial degree, the client has the right to define what is a secret by merely requesting that the information “be held inviolate.”[1]

The Commission recognizes that the mere acquisition of a confidence or secret does not require disqualification. Rule 3.6(h) prohibits only the use of the confidence or secret to the advantage of another. However, it is fair to observe that in most instances where there is knowledge of a material confidence or secret, use may be unavoidable.

Thus the Commission concludes that the lawyer may represent either party unless, as a result of the initial communications, she has obtained confidential information or a secret that is material to the representation, disclosed in good faith by an adverse party. In the latter instance we recommend she not represent either party unless she is certain that her knowledge of the confidence or secret would never be disadvantageous to the disclosing party.


Footnote

[1] It ought to be pointed out that in two instances the “client” will not be deemed to have communicated a confidence or secret, and thus the lawyer would not be disqualified from representing the opposing party. The first would occur if he contacted the law office and, in an effort to disqualify the lawyer from representing the opposing party, revealed information that is “secret” or “confidential”. In that instance the “client” did not disclose a “secret” in the context of seeking legal assistance. Quite the contrary. Rather than seeking legal assistance advice for himself, he was merely trying to restrict his adversary from doing so. Under these limited circumstances, the “client” would have no justifiable expectation of protection under this Rule as he was disclosing a “secret” in a calculated effort to limit the ability of an opponent to obtain counsel of his choice.

The second instance could occur when, before any information is given by the caller, he is clearly warned that any information given in the initial telephone contact will not be considered confidential, and is given at his peril. He then ignores the warning and discloses secret information.


Enduring Ethics Opinion

Enduring Ethics Opinion #156 [August 2011]