Representing One Spouse on Domestic and Estate Matters after Representing Both Spouses Jointly [Proposed 2015 Formal Ethics Opinion 8]
View the Proposed Ethics Opinion in Full Here.
The NC Bar received inquiries about representing individual spouse on certain matters, when the lawyer has previously represented both spouses jointly in other legal matters. As the opinion mentions, there are many areas of law in which a lawyer can, and often does, represent spouses jointly—preparation of reciprocal wills, closing on the purchase of the martial home, or creation of a corporation for a family-owned business. Thus, the question is: can the lawyer later represent one spouse only, subsequent to marital difficulties and separation of the spouses.
The North Carolina Bar rules, yes. Rule 1.9(a) prohibits a lawyer from representing another person in the “same or a substantially related matter” which would be “materially adverse” to a former client. Under this rule, in order to have a conflict of interest (1) the current legal matter must be the same or substantially related to the former legal matters upon which the former client was represented, and (2) the current client’s interests must be materially adverse to the interests of the former client.
Although the second prong is definitely present if a lawyer represents one spouse on domestic or estate matters against the other spouse, after previously representing those spouses jointly; the first prong of the conflict of interest inquiry under Rule 1.9 is not necessarily met. In answering this inquiry, the Ethics Committee applies the rule in Plant Genetic Sys., N.V. v. Ciba Seeds—a middle district of North Carolina federal case—which states that “substantially related” is interpreted to mean “identical” or “essentially the same.”
This opinion rules that the domestic matter is not “identical” to any prior matters that the lawyer jointly represented the spouses on. The opinion also includes that the lawyer may prepare a new will for one spouse, if the separation agreement waives claims against each other’s estates. However, if the lawyer has jointly represented the spouses, later represents one spouse on a criminal matter, the lawyer is later prohibited from representing the other spouse (the one who was not represented on a criminal matter) on a domestic matter, unless the confidential information has become “generally known.”