If a Kentucky lawyer did estate planning for a married couple, can the lawyer later represent one spouse in their divorce?

Plain-English summary

The committee addressed whether a lawyer who handled estate planning for a husband and wife may later represent one of them in a divorce. There was no prior formal opinion directly on point, so the committee drew on KBA E-207 and the ABA informal opinions it cited, which caution a lawyer to avoid representation against a former client where there may be an appearance of conflict or possible violation of confidence, even if none exists in fact. It grounded that in Canon 4 (confidences and secrets), Canon 9 and EC 9-2 (appearance of impropriety), and the Kentucky Supreme Court's statement in In re Advisory Opinion of Kentucky Bar Assn that the point is whether the appearance of impropriety is to be avoided.

The committee made the answer turn on a single fact: how the estate plan was done. If both spouses were together with the lawyer during the planning, the privilege and confidences as between them were waived, and the lawyer could represent either spouse in a later divorce. But if the planning involved separate meetings with each spouse, there was no waiver, and the lawyer may not represent one spouse against the other. The committee noted that estate planning can surface matters not reachable through civil discovery (it gave examples such as a child or a prior marriage unknown to the other spouse) that could affect the dissolution. In the separate-meeting situation, DR 5-105(A) requires the lawyer to decline, and the committee said full disclosure and consent under DR 5-105(C) cannot cure it because it is not obvious the lawyer could adequately represent the interest.

Currency note

This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer who did a couple's estate plan handle one spouse's divorce?

A: It depends. The committee concluded that if the couple did the estate planning jointly, confidences were waived and the lawyer could represent either spouse later; if the lawyer met them separately, the lawyer must decline.

Q: Why did joint versus separate meetings matter so much?

A: The committee reasoned that meeting jointly waived the privilege and confidences between the spouses, while separate meetings preserved each spouse's confidences, which the lawyer could not use against that spouse in the divorce.

Q: Could the lawyer cure the conflict with the clients' consent?

A: In the separate-meeting situation, no. The committee said DR 5-105(C) consent could not cure it because it was not obvious the lawyer could adequately represent the interest given the confidences received.

Background and rules framework

The opinion applies DR 4-101(B) (a lawyer shall not reveal or use a client's confidence or secret) read with Canon 4, and DR 5-105(A) and (C) (decline employment where independent judgment will be adversely affected; limited consent exception), against the appearance-of-impropriety standard of Canon 9 and EC 9-2. The modern analogs are Model Rule 1.9 (duties to former clients) and Model Rule 1.6 (confidentiality). The committee's analysis turns entirely on whether the earlier estate planning created shared or separate confidences.

Citations and references

Rules of Professional Conduct:

• DR 4-101(B) (confidences and secrets), Canon 4; modern analog Model Rule 1.6
• DR 5-105(A), (C) (declining employment; consent exception); modern analog Model Rule 1.9
• Canon 9, EC 9-2 (appearance of impropriety)

Cases:

• In re Advisory Opinion of Kentucky Bar Assn, 613 S.W.2d 416 (Ky. 1981), appearance of impropriety is to be avoided.

Other opinions cited:

• KBA E-207; ABA Informal Opinions 885 and 1125: representation against a former client and the appearance of conflict.

See also

• KBA Ethics Op. E-290: Representing Both Spouses in a No-Fault Divorce
• KBA Ethics Op. E-271: Defense Lawyer Later Representing the Crime Victim
• KBA Ethics Op. E-387: Former In-House Lawyer Adverse to Former Employer

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-245.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-245
Issued: July 1981

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney who does an estate planning for a husband and wife, later represent either one in a subsequent divorce action?

Answer:

Qualified yes.

References:

Opinion KBA E-207; ABA Informal Opinion 885, 1125; Canon 4, 9; EC 9-2- DR 4-101(B), 5-105(A)(C); In re Advisory Opinion of Kentucky Bar Assn, 613 S.W.2d 416 (Ky. 1981)

OPINION

There have been no formal KBA Opinions dealing directly with this question. However, KBA E-207 is very enlightening on the matter. The KBA Opinion quotes ABA Informal Opinion 885 (1965): "The lawyer should avoid representation of a party in a suit against a former client, where there may be the appearance of a conflict of interest or a possible violation of confidence, even though this may not be true in fact."

This position is consistent with Canon 4 and Canon 9 of the Code of Professional Responsibility. Canon 9 states the duty of a lawyer to avoid even the appearance of impropriety. As KBA E-207 points out, EC 9-2 states that "(where) explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession."

Canon 4 states the duty of a lawyer to preserve the confidences and secrets of a client. DR 101(B) states that, "a lawyer shall not knowingly: (1) (reveal) a confidence or secret of his client; (2) (use) a confidence or secret of his client… unless the client consents after full disclosure." The "consent" provision appears to allow for conditional representation in the present situation. However, this is also dealt with in KBA E-207, citing ABA Informal Opinion 1125 (1965), the KBA Opinion gives the relevant facts and proceeds with the ABA recommendation.

In this case the attorney had represented the wife in a domestic problem, and three years later was retained by the husband in a divorce action. The wife gave her consent to this, but later withdrew it. In this case, the Committee on Ethics said: " … we feel it would be best for the attorney to withdraw from representing the husband in the case. We feel it was unfair for the wife to give her consent and then withdraw the consent for the attorney to represent her husband, but even in view of the unfairness of this action on the part of the wife, the Committee feels that there could be a possible conflict of interest."

The possibility of conflict of interest is what concerns this Committee. In, In re Advisory Opinion of Kentucky Bar Assn, 613 S.W.2d 416 (Ky. 1981) the Court stated "The point is not whether impropriety exists, but whether the appearance of impropriety is to be avoided...."

There can be no doubt that a lawyer in doing an estate plan has received privileges and communications in regards to disposition of the property of the parties. It is assumed in this question that the parties were with the lawyer during the estate plan. If this were true, both privilege and communications would be waived by the parties in doing the estate plan and therefore the lawyer could represent either party in a subsequent divorce action. However, if the estate plan consisted of separate meetings with the individual there would be no waiver of the privileges and confidences under the Code of Professional Responsibility. In such case the lawyer may not represent one party in the divorce action against the other party. The fact that many matters concerning the divorce are freely discoverable under the Civil Rules does not adequately cover all the factual situations that could be relevant in the estate plan (a bastard child unknown to the other spouse, a prior marriage and divorce unknown to the other spouse, etc.). These items obviously may have an effect upon the dissolution of marriage case. In such a case we believe that DR 5-105(A) is applicable and that the lawyer should decline the proffered employment because the exercise of independent professional judgment on behalf of the client will be, or is likely to be adversely affected. The Committee does not feel that such could be cured by full consent and disclosure under DR 5-105(C) because it is not obvious that the lawyer could adequately represent the interest even with the disclosure and consent.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.