Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 16-01
Issued February 8, 2016
- Lawyer A, a sole practitioner, was retained to represent Wife in divorce matter. Husband retained Lawyer B at Law Firm B to represent him in the divorce. Husband later discharged Lawyer B and Law Firm B, and Lawyer A continued to represent Wife. Lawyer A later joined Law Firm B, and Husband executed a waiver consenting to Lawyer A’s continued representation of Wife, but only for the express purpose of mediation and settlement negotiation. While employed at Law Firm B, Lawyer A obtained no information regarding Husband from Law Firm B. Lawyer A did not access Husband’s electronic or hard file maintained by Law Firm B and did not discuss the case with Lawyer B. Instead, all information obtained about the case came from Wife and/or third parties. The case settled and Lawyer A withdrew. Lawyer A later left Law Firm B and joined Law Firm C. Lawyer B remains employed at Law Firm B.
- May Wife re-hire Lawyer A at Law Firm C to represent Wife against Husband on various post-decree enforcement issues?
- Yes. When Lawyer A left Firm B and joined Firm C, under Rule 1.9(b) of the Utah Rules of Professional Conduct (the “URPC”), Lawyer A could continue to represent Wife without Husband’s consent because Lawyer A did not obtain any information protected by Rules 1.6 and 1.9(c) about Husband.
- When Lawyer A joined Law Firm B, Husband was a former client of Law Firm B. Rule 1.10(a) provides that [w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 and 1.9….” URPC 1.10(a). This means that if Lawyer B and Firm B have a conflict that would prohibit them from representing Wife against Husband, who is Lawyer B’s and Firm B’s former client, then that conflict would be imputed to Lawyer A now that Lawyer A has joined Firm B, and Lawyer A would not be able to represent Wife, unless an exception applies.
- Because Husband is a former client of Lawyer B and Law Firm B, the first issue is whether pursuant to Rule 1.9, Duties to Former Clients, a conflict exists. Rule 1.9(a) provides 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 unless the former client gives informed consent, confirmed in writing.” URPC 1.9(a) (emphasis added). Here, Husband’s and Wife’s interests are directly adverse in the same matter, the divorce proceedings. However, Lawyer A obtained Husband’s consent in writing to Lawyer A’s continued representation of Wife in the divorce proceedings for the express purpose of mediation and settlement negotiation.
- Rule 1.9(c)(1) further provides that a lawyer or firm may not use information relating to the representation of a former client to the disadvantage of the former client. URPC 1.9(c)(1). In addition to obtaining Husband’s written consent, Lawyer A did not access Husband’s file while at Firm B or speak to Lawyer B about the case involving Husband and Wife. Lawyer A did not obtain any information from Lawyer B or Law Firm B related to their representation of Husband. Because it appears that Lawyer A’s representation of Wife while at Law Firm B complied with Rule 1.9, it was proper for Lawyer A to represent Wife while Lawyer A was at Firm B.