Bar Counsel Notes: Conflict of Interest
Question: Attorney has a varied practice which includes estate planning and family law work. Ten years ago H and W retained Attorney to do their estate planning and update their wills. Attorney has just been informed that H and W are now separated and have a pending divorce. If consulted, may Attorney handle and represent either H's or W's family matter?
No - Under MRPC 1.7 and 1.9, now that an adversity of interests is present between H and W, Attorney has a conflict of interest regarding both H and W, for which she should not seek consent from either of them. Therefore, she should decline each case and refer each former client to separate alternate counsel.
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.