Opinion 94-17
(October 1994)

The Committee has been asked several specific questions with respect to an attorney (the "Inquirer") who has been asked by a potential client (Mr.T) to represent him in a divorce action. The Inquirer has told the Committee that Mr. T, the potential client, is a non-equity partner in a law firm, in which Mr. R also is a non-equity partner. The Inquirer formerly represented Mrs. R, Mr. R's ex-wife, in a divorce action against Mr. R. Mr. R has learned of the Inquirer's potential representation of Mr. T and has stated that he will object to the Inquirer's future involvement in the R vs. R matter if the Inquirer receives information from Mr. T about what partners are paid at the law firm. The Inquirer further has told the Committee that he has closed his file on behalf of Mrs. R and considers himself discharged by Mrs. R and that another attorney took over representation of Mrs. R with reference to custody and support matters.

The Inquirer has asked the following questions:

1. May the Inquirer represent Mr. T?

2. Does the Inquirer have to advise his former client, Mrs. R, that if she wants the Inquirer to represent her again, he may be disqualified?

3. May the Inquirer advise his former client, Mrs. R, of economic information regarding the partners and the partnership?

With respect to the first question, it is the Committee's opinion that the Inquirer may represent Mr. T in his divorce action. Accepting the Inquirer's statement that Mrs. R is his former client, the Committee applies Rule 1.9 of the Rules of Professional Conduct (the "Rules"). Rule 1.9 prohibits an attorney from representing a client "in the same or a substantially related matter in which that [client's] interests are materially adverse to the interests of [a] former client...." In this inquiry, the proposed representation of Mr. T would not be the same or a substantially related matter to the representation of Mrs. R. Although the economic issues regarding partner compensation may be similar, the matters themselves are not "substantially related," and Mr. T's interests are not "materially adverse" to Mrs. R's interests.

With respect to question 2, it is the Committee's opinion that the Inquirer does not have to advise Mrs. R prior to undertaking the representation of Mr. T that if she wants representation again, the Inquirer may be disqualified from such representation. As a matter of fact, Rule 1.6 prohibits the Inquirer from revealing to Mrs. R information relating to his representation of Mr. T. The Committee also is of the opinion that under Rule 1.7(b), the Inquirer most probably would have to decline further representation of Mrs. R, if asked by her, because of both issue and factual conflicts with respect to partner compensation, its disclosure and its role in the equitable distribution and support aspects of a divorce proceeding.

With respect to question 3, it is the Committee's opinion that Rule 1.6 also prohibits the Inquirer from informing his former client, Mrs. R, of economic information regarding the partners and the partnership because, presumably, the Inquirer would obtain such information in conjunction with his representation of Mr. T, making such information confidential as between the Inquirer and Mr. T.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.