The Utah Bar recently considered the following conflicts inquiry. Puzzle
Lawyer A represented a wife in a divorce proceeding and then moved to a new law firm #2. New law firm #2 had previously represented the husband in the same divorce; the husband consented to the wife’s attorney’s continued representation of her for the purpose of mediation and settlement negotiation. The wife’s attorney did not have access to the husband’s file.
Later, the wife’s attorney moved to a third, separate law firm #3. The wife approached her attorney at law firm #3 to seek representation for post-decree enforcement proceedings against the former husband. So, could the attorney continue to represent the wife while at law firm #3?
According to the Utah State Bar’s Ethics Advisory Opinion Committee, the wife’s attorney could continue to represent her at the third firm. In a February 2016 opinion, the Committee explained that a lawyer may represent a spouse in post-divorce matters at a firm, which the lawyer recently joined, even if the lawyer’s former firm previously represented the other spouse in the divorce case. So long as the wife’s lawyer has no actual knowledge of the husband’s information, no ethical violation occurs.
Utah’s Rule of Professional Conduct 1.9(a) states that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” Applying this rule and its exceptions to the situation stated above, the Committee explained that while the spouses were considered adverse parties, the conflict had been cured. The Committee explained the actions that cured the conflict included the written consent from the husband and the attorney’s sequestration from the husband’s information at the second firm.
Read the recent advisory opinion here.
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