Can a lawyer represent two divorce clients at once and use evidence learned from one client in the other's case?

Plain-English summary

A lawyer represented two separate domestic-relations clients, C1 and C2, whose spouses (S1 and S2) were having an affair with each other. The lawyer learned of the affair from C2 and wanted to use that evidence in both clients' cases. The question was whether the lawyer was barred from the dual representation because the evidence came from one of the clients.

The committee concluded the lawyer is not prevented from the dual representation, so long as neither client objects to the use of the information, which would mean no conflict of interest under Rule 1.7. It assumed both clients consented to use of the information under Rule 1.6, that the information was not obtained in breach of confidentiality or by illegal means, and that evidence is not proprietary. Rule 1.7(a) was not implicated because representing C1 did not directly and adversely affect C2; the joint representation helped both. Rule 1.7(b) was not violated because neither representation would materially limit the lawyer's responsibilities to the other client, and that would remain true even if one marriage reconciled.

The opinion states the lawyer should disclose to both clients the simultaneous representation, that each may be compelled to testify in the other's case, and that even on reconciliation the information could still be used and each client and spouse could be subpoenaed involuntarily in the other case.

In practice

Under this opinion, on the facts presented, a lawyer could continue representing both divorce clients and use the shared evidence because, with both clients' consent and no objection, neither Rule 1.7(a) nor Rule 1.7(b) was implicated. The committee tied that conclusion to the joint representation helping rather than adversely affecting either client, and directed disclosure to both clients of the dual representation and the possibility that either client or spouse could be subpoenaed in the other case.

Common questions

Q: Can I represent two divorce clients whose spouses are involved with each other?

A: The opinion concludes you may, so long as neither client objects to using the shared evidence, because then no Rule 1.7 conflict arises.

Q: Does using evidence one client told me about create a conflict?

A: Not on these facts. The committee found Rule 1.7(a) was not implicated (the representations were not directly adverse) and Rule 1.7(b) was not violated (neither representation materially limited the other), assuming consent under Rule 1.6.

Q: What should I tell the clients?

A: The opinion says the lawyer should disclose the simultaneous representation, that each client may be compelled to be a witness in the other's case, and that the information could still be used (and either client or spouse subpoenaed) even if a marriage reconciles.

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 1.7 (conflict of interest, general rule) and Model Rule 1.6 (confidentiality, here the basis for the assumed consent to use the information), in the South Carolina Rules of Professional Conduct, Rule 407, SCACR.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / SC Rule 1.7(a), (b) (conflict of interest; directly adverse and material-limitation tests)
• MR 1.6 / SC Rule 1.6 (confidentiality; basis for the clients' consent to use of the information)

See also

• SC Bar Ethics Op. 04-10: Imputed conflict and the lawyer-as-witness rule
• ABA Formal Op. 08-450: Confidentiality when representing multiple clients in the same matter

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-04-04/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 04-04

Facts
Lawyer has two different domestic relations clients. These clients shall be called C1 and C2. The spouses of each client shall be called S1 and S2. S1 and S2 are having an affair with each other. The lawyer learns of this from C2. C1 was previously unaware of this. Lawyer desires to use this evidence both in the case of C1 and the case of C2.

Question
Is the lawyer prevented from dual representation due to the happenstance of the lawyer learning of crucial evidence from one of his clients?

Summary
The lawyer may not be prevented from dual representation due to the mere happenstance of the lawyer’s learning of crucial evidence from one of his clients, so long as neither client objects to the use of the information, thereby creating no conflict of interest under Rule 1.7.

Discussion
The Committee assumes that C1 and C2 consent to the use of the information pursuant to Rule 1.6. There is no evidence that the information was obtained in violation of any duty of confidentiality or through any illegal means. Evidence is not proprietary.

The general rule on conflict of interest is set out in Rule 1.7 of the S. C. Rules of Professional Conduct. Rule 1.7(a) is not implicated because the representation of C1 does not directly adversely impact C2. Indeed, the joint representation helps both C1 and C2. Similarly, Rule 1.7(b) is not violated because the representation of C1 will not materially limit the lawyer’s responsibility to C2 or vice versa. In the event of reconciliation of one marriage, 1.7(b) would still not be implicated.

The lawyer should disclose to both C1 and C2 his simultaneous representation of each client so that each client knows that the lawyer has another client who is interested in the same evidence. The lawyer should disclose to C1 and C2 that each client may be compelled to be a witness in the other client’s case. The lawyer should also disclose to both clients that, in the event of reconciliation between C1 and S1 or C2 and S2, the information could still be used in the other case and that each client and each spouse is subject to being subpoenaed involuntarily in the other case.