Ethics Opinion

Opinion 73-3

FLORIDA BAR ETHICS OPINION
OPINION 73-3
April 30, 1973
Advisory ethics opinions are not binding.
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:
Opinions:

Canon 9
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 disadvantage 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.