Can a lawyer who represented both spouses now represent the wife in seeking a guardianship over her disabled husband?

Plain-English summary

The committee discussed whether a lawyer who had represented a husband and wife in various matters could now represent the wife in petitioning for guardianship of the estate of the disabled husband. The committee did not reach a definitive answer, but set out its general discussion.

It said RPC 1.9(b) would prevent the lawyer from undertaking the representation if it would involve using confidences or secrets about the husband learned in the prior representation. The committee saw the guardianship proceeding as adversarial, which would create a conflict in seeking the wife's appointment as guardian. It noted that after a guardian was appointed, the lawyer might be able to represent the wife/guardian, because the guardian stands in the place of the ward and owes the ward a fiduciary obligation, so the lawyer could reveal confidences or secrets to the guardian after appointment. The committee also noted the lawyer might be a witness in the proceeding, which might interfere with representing the wife.

The committee felt the answer would depend on the specific facts of each case regarding the conflict between the wife and the husband in seeking her appointment. On the facts of the inquiry, the spouses seemed to have separate financial interests because not all of the husband's property was community property. The committee was clear that if the lawyer were aware of an actual conflict of interest or the use of confidences or secrets, the lawyer could not represent the wife in seeking the guardianship.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.9 on duties to former clients was later renumbered and amended. The committee itself reached no definitive conclusion. Treat this page as historical context, not current guidance.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: Did the committee give a yes-or-no answer?

A: No. The committee did not reach a definitive answer and described its general discussion, stressing that the answer would depend on the specific facts of each case.

Q: When would RPC 1.9(b) bar the lawyer from seeking the guardianship?

A: The committee said it would bar the representation if it would involve using confidences or secrets about the husband learned in the prior representation, and that the lawyer could not proceed if aware of an actual conflict of interest or the use of such confidences.

Q: Could the lawyer represent the wife once she became guardian?

A: The committee said that after the guardian was appointed, the lawyer might be able to represent the wife/guardian, because the guardian stands in the place of the ward, so the lawyer could reveal confidences or secrets to the guardian after appointment.

Q: Did the committee see any other complication?

A: Yes. It noted the lawyer might be a witness in the guardianship proceeding, which might also interfere with representing the wife.

Background and rules framework

The opinion interprets Washington RPC 1.9(b) as it stood in 1986, the rule on duties to a former client (corresponding to Model Rule 1.9). The committee applied it to a lawyer who had jointly represented two spouses and was asked to represent one of them in an adversarial guardianship petition over the other, treating the use of confidences and any actual conflict between the spouses' interests as the controlling, fact-specific factors.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.9(b) (duties to former clients; use of confidences), corresponding to Model Rule 1.9.

See also

• WSBA Ethics Op. 975: suing a former client in an unrelated matter
• WSBA Ethics Op. 968: representing someone harmed by a former client
• WSBA Ethics Op. 903: joint clients and a conflict in a pending dissolution

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=91

Original opinion text

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

Advisory Opinion: 980
Year Issued: 1986
RPC(s): RPC 1.9(b)
Subject: Conflict of interest; representation of wife in petition for guardianship of husband when lawyer previously represented both husband and wife

The Rules of Professional Conduct Committee discussed your inquiry concerning the propriety of a lawyer who had represented a husband and wife in various legal matters now undertaking to represent the wife in petitioning for guardianship for the estate of the disabled husband. The Committee did not reach a definitive answer, but did want me to advise you of their general discussion.

First, the Committee was of the opinion that RPC 1.9(b) will prevent the lawyer from undertaking such representation if it would involve the use of confidences or secrets about the husband which he learned from the prior representation. The Committee saw the guardianship proceeding as an adversarial one which would create a conflict in seeking the appointment of the wife as the guardian. After the guardian was appointed, however, because of the fiduciary obligation to the ward, the lawyer might be able to undertake further representation of the wife/guardian. Since the guardian would stand in the place of the ward, the lawyer could reveal confidences or secrets to the guardian after the appointment. The Committee also noted that in the guardianship proceeding, the lawyer might be a witness which might also interfere with his representation of the wife.

There was considerable feeling that the answer would depend upon the specific facts in each case regarding the conflict of interest between the wife and the husband in seeking the appointment of the wife as a guardian. In the facts of your inquiry, the husband and wife seem to have separate financial interests because not all of the husband's property was community property. The Committee was clear that if the lawyer were aware of an actual conflict of interest or the use of confidences or secrets, that the lawyer could not represent the wife in seeking the guardianship.