Can a lawyer who won property for a divorce client later represent that client's new spouse in a divorce that would strip away the same property?

Plain-English summary

A law firm had represented a woman in her dissolution of marriage. Her second husband then asked the firm to represent him in a divorce against her, where the principal issue would be ownership of real estate that had been awarded to the woman in her first divorce, in which the firm represented her.

The committee recalled, from its Opinion 569, that the Code contains no specific bar to representing a party against a former client in a divorce, but cautioned, citing Opinions 110 and 363, that a lawyer may undertake such a representation only after careful analysis of how it might affect the former client's property rights, and only where it would not reveal confidences or secrets usable to the former client's disadvantage. Quoting Drinker's formulation, the committee framed the test as whether accepting the new retainer would require the lawyer, in advancing the new client's interest, to do anything that would injuriously affect the former client in a matter in which the lawyer formerly represented that client.

Because the second husband's goal would be to obtain a portion of the very property the firm had originally secured for the wife, the committee found her rights would obviously be injuriously affected. It concluded that the lawyer should decline to represent the second husband, because the lawyer's independent professional judgment may be adversely affected, creating a conflict contrary to former Rule 5-105(a).

Currency note

This opinion was issued in August 1986, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 1.9), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer take a divorce case against a former divorce client?

A: The opinion noted there is no per se bar, but concluded the lawyer should decline here because the new matter targets the very property the firm had secured for the former client, injuriously affecting her.

Q: What test did the committee apply?

A: Per the opinion, the test (quoting Drinker) is whether advancing the new client's interest would require the lawyer to do anything that injuriously affects the former client in a matter the lawyer formerly handled.

Q: What rule did the conflict implicate?

A: The committee found a conflict contrary to former Rule 5-105(a), because the lawyer's independent professional judgment may be adversely affected by the new representation.

Background and rules framework

The opinion applied former Illinois Code Rule 5-105(a) (declining employment likely to impair independent judgment), in the context of duties to a former client. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.9, corresponding to ABA Model Rule 1.9 on duties to former clients.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 5-105(a) (conflicting employment, applied in the opinion)
• Illinois RPC 1.9 (2010 equivalent per the Board's affirmation)
• MR 1.9 (duties to former clients)

Other opinions cited:

• ISBA Opinions 110, 363, 569: representation against a former client in a divorce

See also

• ISBA Ethics Op. 85-11: Suing a Former Client's Spouse
• ISBA Ethics Op. 86-17: Duties Run to the Client Only
• ISBA Ethics Op. 88-07: Suing a Former Village Client

Source

• Landing page: https://www.isba.org/ethics/opinions/8606