Opinion #8. Divorce Conflict of Interest Opinion
Issued by the Professional Ethics Commission
Date Issued: April 2, 1980
The Commission has been asked to render an advisory opinion concerning the ethical obligations of Lawyers A and B in the following hypothetical situation.
H and W have decided to get a divorce. W has hired Lawyer A to represent her in the matter and has had her first meeting with him. H, not knowing this, subsequently consults with Lawyer B, who is Lawyer A’s associate, about getting a divorce from W. At that meeting H tells Lawyer B that the parties have agreed to a “no‑fault” divorce and a property settlement. He then discusses with Lawyer B his income, assets, what he is seeking in the divorce, and the legal issues and procedures involved in obtaining a divorce.
Lawyer B then informs Lawyer A that this consultation has taken place, and Lawyer A tells Lawyer B not to represent H because Lawyer A already represents W. Lawyer B calls H and tells him this, and H hires Lawyer C, a member of a different law firm, to represent him in the divorce. No fee is ever charged to H for the consultation with Lawyer B, and there is no further contact between Lawyer B and H.
Must Lawyer A withdraw as W’s counsel in the divorce action?
If not, must Lawyer A at least disclose to Lawyer C the fact of H’s consultation with Lawyer B?
Must Lawyer B keep confidential the information obtained at his meeting with H?
The Commission will begin by discussing Lawyer B’s ethical obligations in this situation. Rule 3.4(b) of the Maine Bar Rules provides, in relevant part:
(b) Conflict of Interest. A lawyer shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests. . .
Rule 3.4(k) of the Maine Bar Rules provides:
(k) Partners and Associates Barred. If, for reasons other than health, a lawyer is required to decline employment or to withdraw from employment under these rules, no partner or associate, and no lawyer affiliated with him or his firm, may accept or continue such employment.
In the instant case, Lawyer B, after learning of Lawyer A’s representation of W, decided not to accept employment by H, and so advised H. This conduct complied with the above‑quoted rules. There is no ethical obligation to investigate whether representation of a prospective client will or may give rise to a conflict of interest situation before discussing the merits of the case with that prospective client.If such a discussion does take place, however, and the lawyer then concludes that employment cannot be accepted because of an actual or potential conflict of interest, that lawyer is ethically obligated to preserve the confidences and secrets revealed by the prospective client during that discussion.
Rule 3.6(l) provides, in relevant part:
(l) Preserving the Confidences and Secrets.
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 his client, or use such confidence or secret to the advantage of himself or a third person.
2) A lawyer shall exercise reasonable care to prevent his partners, employees, associates, and others whose services are utilized by him from improperly disclosing or using confidences or secrets of a client.
A prospective client who consults with a lawyer, seeking advice and/or representation by that lawyer is, in the opinion of this Commission, a “client” of that lawyer for purposes of Rule 3.6(l), even though the lawyer then or later decides not to accept employment by that client. Thus, in the instant case, Lawyer B must comply with the requirements of Rule 3.6(l) and preserve the confidences and secrets of H, even after informing H that he cannot represent him in the divorce action.
Turning now to Lawyer A, and to the question of whether he must withdraw as W’s counsel, the Commission believes Rule 3.5(b)(2)(ii) mandates such withdrawal. That Rule provides that a lawyer must withdraw from employment if “he knows, or should know, that his continued employment will result in a violation of these Rules.” In the instant case, it is clear that confidences and secrets were imparted by H to Lawyer B, and therefore Lawyer B could not then represent W without violating Rule 3.6(l)(1), which prohibits the use by a lawyer of a confidence or secret of a client to the advantage of himself or a third person. Rule 3.4(k) extends this disqualification to Lawyer A, and therefore Lawyer A is ethically required to withdraw as W’s counsel in the divorce action.
In light of the Commission’s conclusion that Lawyer A must withdraw from the case, there is no need to address that alternative question presented with regard to disclosure to Lawyer C.
The Commission believes that the preferred practice among all lawyers should certainly be to establish procedures that will enable them to recognize conflicts of interest, or potential conflicts, at the earliest possible stage of dealing with a prospective client, in order to avoid the type of problem that arose in the instant case. On the other hand, the Commission recognizes the practical difficulties lawyers face in this regard, particularly in the larger firms (some of which have more than one office location), and the need to obtain certain basic information from a client at the initial conference to avoid additional consultations and expense to the client.