After a firm represented both spouses in estate planning, can a firm lawyer represent the wife in a divorce over the husband's later objection if he gave written consent?

Plain-English summary

A law firm had previously represented a husband and wife in estate planning. A member of that firm was now asked to represent the wife in a dissolution proceeding. Before taking on the dissolution, the lawyer met with the husband and obtained the husband's written consent to the representation of the wife, and that written consent included an acknowledgement that the husband had the right and opportunity to seek legal counsel.

The committee was of the opinion that, on those facts, the lawyer would not be obligated to withdraw when the husband later objected to the representation.

The committee added one qualification. The lawyer may have a duty to establish that the husband had appropriate consultation at the time of consent. The validity of the earlier consent, not the husband's later change of position, was what mattered.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The conflict rule then numbered RPC 1.7 corresponds to Model Rule 1.7 and was rewritten in the current rules, including changes to how informed consent is defined and confirmed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or consent requirement mentioned here.

Common questions

Q: If a former joint client later objects, does the lawyer have to drop the other spouse's case?

A: Per the opinion, not where the husband had given written consent to the representation. The committee was of the opinion that the lawyer would not be obligated to withdraw when the husband later objected.

Q: What made the husband's consent effective here?

A: The written consent included an acknowledgement that the husband had the right and opportunity to seek legal counsel. The committee treated the consent, given on those terms, as sufficient.

Q: Is the consent the end of the inquiry?

A: No. The committee said the lawyer may have a duty to establish that the husband had appropriate consultation at the time of consent.

Background and rules framework

The opinion applies the conflict rule then numbered Washington RPC 1.7, corresponding to Model Rule 1.7, to a lawyer who, after a firm's prior joint representation of both spouses in estate planning, undertakes to represent one spouse against the other in a dissolution. The committee's analysis turned on the husband's written consent and whether he had appropriate consultation when he gave it, rather than on his later objection.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.7 (conflict of interest), corresponding to Model Rule 1.7.

See also

• WSBA Ethics Op. 980: representing the wife in a guardianship of the husband after representing both jointly
• WSBA Ethics Op. 1078: litigation against a former client where the matters are not substantially related
• ABA Formal Op. 497: when interests are "materially adverse" to a former client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=209

Original opinion text

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

Advisory Opinion: 1129
Year Issued: 1987
RPC(s): RPC 1.7
Subject: Conflict of interest; written consent; representation of wife in dissolution following representation of both spouses in estate planning

The Committee was of the opinion that where a law firm had previously represented a husband and wife in estate planning and a member of that firm is now asked to represent the wife in a dissolution proceeding, and the lawyer had met with the husband and obtained the husband's written consent to the representation of the wife by the lawyer, which written consent included the acknowledgement that the husband has the right and opportunity to seek legal counsel, the lawyer would not be obligated to withdraw when the husband later objected to that representation. However, the lawyer may have a duty to establish that the husband had appropriate consultation at the time of consent.