Can a firm represent a wife in collecting child support from her ex-husband when the firm earlier drafted a will for the husband?

Plain-English summary

The ABC firm had represented the wife in a 1985 divorce and, in 1986, helped her pay off the husband's mortgage on property she received in the divorce (preparing the discharge for the husband's signature). In April 1987 the husband retained the firm to prepare a will. By December 1987 the wife asked the firm to help collect child support the husband was not paying under the divorce decree. The firm asked whether it could represent the wife in that collection matter.

The Commission analyzed the question under Maine Bar Rule 3.4. It found both spouses were former clients and that the facts did not show an ongoing attorney-client relationship with the wife. Under Rule 3.4(a), before accepting the wife's representation the firm had to disclose to her, as the prospective client, its prior professional relationship with the husband. Under Rule 3.4(e), a lawyer may not accept employment adverse to a former client, without that client's informed written consent, where the new employment involves the subject matter of the former employment or may involve use of confidential information obtained through it. Because the Commission had no details of the will representation, it noted the firm might have obtained financial or other confidential information bearing on the child-support controversy; if so, the firm had to inform the husband of the proposed employment and obtain his written consent before undertaking the wife's representation. It cited Grievance Commission Opinions 2 and 32 for further discussion of litigation against a former client.

Currency note

This opinion was issued in 1988, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a firm sue a former client it once helped if the matter is different?

A: The opinion concluded it may, but Rule 3.4(e) requires the former client's informed written consent if the new matter involves the subject of the former work or may involve use of confidential information obtained in it.

Q: What must the firm tell the new client?

A: The opinion concluded Rule 3.4(a) requires the firm to disclose to the prospective client (the wife) its prior professional relationship with the husband before accepting the representation.

Q: Does drafting the husband's will create a problem for a later support case?

A: The opinion concluded it could, because the will work may have produced financial or other confidential information bearing on the child-support matter; if so, the husband's written consent is required.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.4 (conflicts of interest), specifically Rule 3.4(a) (disclosure of prior relationships to a prospective client) and Rule 3.4(e) (employment adverse to a former client without informed written consent where the matters are substantially related or confidences may be used). That standard corresponds to ABA Model Rule 1.9 (duties to former clients). The opinion cites Grievance Commission Opinions 2 and 32.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 (duties to former clients)
• Maine Bar Rule 3.4(a); Rule 3.4(e)

Other opinions cited:

• Maine Grievance Commission Opinions 2 and 32 (litigation against a former client)

See also

• ABA Formal Op. 497: Materially Adverse Conflicts
• ABA Formal Op. 479: The "Generally Known" Exception for Former Clients

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91463

Original opinion text

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

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.