Opinion #83. Domestic Litigation Against Former Client

Issued by the Professional Ethics Commission

Date Issued: March 10, 1988

Pursuant to Maine Bar Rule 11(c)(2), ABC firm has requested an advisory opinion regarding the ethical obligations arising from the following set of facts:

Statement of Facts

In 1985, wife was represented by the ABC law firm in a divorce. In June, 1986, wife also requested advice from the firm regarding a loan she was seeking from a financial institution to pay off a mortgage held by husband on property owned by wife and obtained as a result of the divorce. The firm assisted wife at the closing of the loan that she obtained to pay off the mortgage and prepared the discharge of mortgage for husband’s signature. In April, 1987, husband contacted the ABC law firm requesting assistance in preparing a will. The office prepared a will for him at that time. In the summer of 1987, husband left the State of Maine for another state. In December, 1987, wife again contacted ABC law firm requesting assistance in collecting child support that husband is not paying pursuant to the terms of the divorce decree.

Question Presented

May the ABC law firm represent the wife in collecting child support that the husband is not paying pursuant to the terms of the divorce decree?

Opinion

Maine Bar Rule 3.4 governs the standards of conduct that apply to this situation. Both wife and husband are former clients of the ABC law firm. The firm’s professional relationship with wife consisted of divorce representation in 1985 and assistance in paying off husband’s mortgage on property, owned by her and obtained as a result of the divorce, in June, 1986. More recently, husband hired the firm to prepare a will in April, 1987. The facts with which we are presented do not suggest that wife has an ongoing attorney‑client relationship with the ABC law firm. Rule 3.4(a) mandates that before ABC can accept representation of the wife in this child support matter it must disclose to wife as the prospective client the prior professional relationship with husband.

Rule 3.4(e) prohibits a lawyer from accepting employment adverse to a former client without that client’s informed written consent if such new employment involves the subject matter of the former employment or may involve the use of confidential information obtained through such former employment. In the present case we have not been provided with details of ABC law firm’s representation of the husband. It may well be that in the course of preparing the will, the attorney(s) obtained financial information or other confidential information the nature of which bears upon the current child support controversy. In that review, ABC law firm in compliance with Rule 3.4(e) must inform husband of the proposed employment by wife and obtain his written consent in order to undertake wife’s representation. See also Opinions #2 and 32 of the Grievance Commission of the Board of Overseers of the Bar for further discussion of the Rules implicated by litigation against a former client.


Enduring Ethics Opinion