The Florida Bar

April 30, 1973
An attorney who previously represented both husband and wife may represent the husband in a dissolution of marriage proceeding as long as he did not obtain confidential information from the wife during the former representation which could be used to her disadvantage.

CPR: Canon 9
Opinions: 60-9, 71-14, 72-17; ABA Informal 1125

Chairman Zehmer stated the opinion of the committee:

On two prior occasions the inquiring attorney represented a husband and wife in connection with, first, the sale of some jointly owned real estate and, second, recovering some funds which the wife had invested. By reason of this representation, the inquiring attorney gained knowledge of matters both confidential and of public record relating to the economic condition of the husband and wife. Now the wife has employed another attorney and filed dissolution of marriage proceedings. No children are involved but a substantial dispute over economic matters is anticipated. The inquirer asks whether he may ethically represent the husband in view of his prior representation of both the wife and husband.

The resolution of this inquiry must begin with the admonition in Canon 9 of the Code of Professional Responsibility that "a lawyer should avoid even the appearance of professional impropriety."

We have previously held in Opinion 71-14 that

[Although] a lawyer has rendered service for a particular client, there is nothing in the CPR to the effect he may never undertake representation adverse to the former client in the absence of consent. Generally, a lawyer should be wary of accepting employment adverse to a former client and he may not switch sides with respect to the same or related matters. However, there can be situations wherein former representation is so unrelated in subject matter or so distant in time that the lawyer is not ethically barred from representation in opposition to the former client notwithstanding lack of consent.

On the other hand, in Opinion 60-9, decided under the former Canons of Ethics, the Committee determined that in a divorce proceeding it is not advisable for an attorney to represent the wife after the husband had been a client or to represent both parties despite good intentions and full disclosure.

The present inquiry turns upon whether the inquiring lawyer acquired information from the wife as her attorney which is material to the marriage dissolution proceeding and which, in properly representing the husband, the lawyer would be obligated to use to the disadvantage of the wife. As the inquiry does not clearly identify the significance of the information gained by the inquirer through his former representation of the wife nor the manner in which such information could be used in the marriage dissolution proceedings, the Committee does not give definitive approval or disapproval to the proposed representation. Certainly the wife's consent to this representation is relevant, although not necessarily controlling, to what the inquiring lawyer can properly do now. See Florida Opinion No. 72-17 and ABA Informal Opinion No. 1125. The critical consideration, it seems, is whether or not the lawyer will find himself in the position of using information obtained from the wife to her disadv antage in the marriage dissolution proceedings. Thus, the inquiring attorney will need honestly and objectively to apply the appropriate guidelines to his factual situation, keeping in mind the admonition of Canon 9.

In summary, the Committee finds that the inquiring attorney is not prohibited by the CPR from representing the husband solely by reason of his prior representation of the wife, but it does caution the inquiring attorney that such representation, absent consent from the wife, is likely to subject him to the appearance of professional impropriety that Canon 9 seeks to avoid.

One member of the Committee, referring to Opinion 60-9, would disapprove of the proposed representation on the facts stated.

[Revised: 08-24-2011]