Ethics Opinions

ETHICS OPINION NO. 68
OF THE MISSISSIPPI BAR

RENDERED Monday, January 04, 1982

Editor's Note: Refer to Rule 1.6.

CONFLICT OF INTEREST- Attorney who has represented both parties in irreconcilable differences divorce may not subsequently represent one spouse against the other on Petition to modify divorce.

The Ethics Committee of the Mississippi State Bar Association has been requested to render an opinion regarding whether or not an attorney who had represented a wife in an irreconcilable divorce could subsequently represent the former husband in a proceeding to modify the child support provisions contained in the original decree.

Canon 4 of the Code of Professional Responsibility provides that:

"A lawyer should preserve the confidences and secrets of a client."

Ethical Consideration 4-5 provides:

A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of a client and a lawyer should not use except with the consent of his client after full disclosure, such information for his own purposes. Likewise a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another, and no employment should be accepted that might require such disclosure.

Ethical Consideration 4-6 provides:

"The obligations of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment." Opinion No. 34 of the Ethics Committee of the Mississippi State Bar quoted an Informal Ethics Opinion of the Committee on Ethics and Professional Responsibility of the American Bar Association as follows:

The rendition of professional services by an attorney to one party to a litigation, which thus establishes necessarily a relation of trust and confidence, precludes the acceptance of employment by such attorney in any subsequent phase of the same litigation from the adverse party. A client is encouraged to make full disclosure of all facts to his attorney, and he should be justified in feeling that his attorney will never be found helping the other side of the litigation. The matter is not to be determined by such facts as that the original services were rendered on the employment of another lawyer, or that the services may have had no particular bearing upon the phases of the litigation contemplated to be conducted on behalf of the new employer, or that it is provable that no information was acquired in the first employment that might prove useful in the subsequent employment. Irrespective of any actual detriment, the first client might naturally feel that he had in some way been wronged, when confronted by a final decree obtained by a lawyer employed in his behalf in an earlier part of the same litigation. To maintain public confidence in the Bar, it is necessary not only to avoid actual wrongdoing, but appearance of wrongdoing.

In the opinion of the Committee, the representation of the former husband by the same attorney who represented the former wife would be in violation of Canon 4 of the Code of Professional Responsibility.