Advisory Opinion:
980
Year Issued:
1986
RPC(s):
RPC 1.9(b)
Subject:
Conflict of interest; representation of wife in petition for guardianship of husband when lawyer previously represented both husband and wife
The Rules of Professional Conduct Committee discussed your inquiry concerning the propriety of a lawyer who had represented a husband and wife in various legal matters now undertaking to represent the wife in petitioning for guardianship for the estate of the disabled husband. The Committee did not reach a definitive answer, but did want me to advise you of their general discussion.
First, the Committee was of the opinion that RPC 1.9(b) will prevent the lawyer from undertaking such representation if it would involve the use of confidences or secrets about the husband which he learned from the prior representation. The Committee saw the guardianship proceeding as an adversarial one which would create a conflict in seeking the appointment of the wife as the guardian. After the guardian was appointed, however, because of the fiduciary obligation to the ward, the lawyer might be able to undertake further representation of the wife/guardian. Since the guardian would stand in the place of the ward, the lawyer could reveal confidences or secrets to the guardian after the appointment. The Committee also noted that in the guardianship proceeding, the lawyer might be a witness which might also interfere with his representation of the wife.
There was considerable feeling that the answer would depend upon the specific facts in each case regarding the conflict of interest between the wife and the husband in seeking the appointment of the wife as a guardian. In the facts of your inquiry, the husband and wife seem to have separate financial interests because not all of the husband's property was community property. The Committee was clear that if the lawyer were aware of an actual conflict of interest or the use of confidences or secrets, that the lawyer could not represent the wife in seeking the guardianship.
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