Legal Ethics Opinion #1546

Confidences and Secrets - Conflict of Interest: Representing
Husband Three Years After Wife Consulted With Attorney Regarding
Divorce

You have indicated a hypothetical situation in which a lawyer
consults with a wife/potential client concerning a divorce.  At
the time of the consultation, the wife and her husband, both
employed, had recently separated and had a young child.  At the
consultation, the wife informed the attorney of her husband's and
her respective incomes, the approximate value of the home, and
the fact that she desired to maintain custody of the child.  The
wife also indicated what she desired to obtain in the divorce,
support, and equitable distribution proceedings and gave the
attorney a basic outline of the parties' debts and assets. 
Further, the wife stated generally her grounds for divorce
without stating the factual basis therefor.  Although the
attorney quoted a fee to the wife, he did not request or bill a
consultation fee to the wife.  The wife, therefore, paid neither
a consultation fee nor retained the attorney.  Subsequently, the
husband and wife sold the marital home, divided the proceeds, and
reconciled.

You indicate that, more than three years later, the wife filed
divorce proceedings against the husband.  In the Bill of
Complaint for the divorce, the wife set forth as her grounds for
divorce the same general grounds of separation that she had
earlier stated to the attorney, although the separation was a
different one which occurred more than three years after the
original separation for which she had consulted the attorney.  In
addition, the Bill of Complaint alleges a pattern and history of
physical abuse and substance abuse by the husband and prays for
the same relief the wife had said she wanted from her divorce
when she consulted with the attorney three years earlier.  You
indicate that the wife may rely on acts occurring more than three
years ago to establish apprehension of danger to her safety.

You indicate that at the present time, three years following the
wife's initial consand wishes to hire the attorney for
representation in the divorce matter.  Finally, you indicate that
any information divulged by the wife to the attorney in the
conference three years ago was less detailed than she will be
required to divulge under the discovery rules and pursuant to the
rules of the Judge of the Court.  

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the attorney to represent the
husband in this divorce.  In the event that the committee should
opine that the attorney may not represent the husband, you have
also asked the committee to opine whether that opinion would be
altered if the wife had consulted with many lawyers in the area
with the specific intent of precluding her husband from being
able to engage any of them for representation in the divorce
matter.

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 5-l05(D) which provides that a lawyer who has
represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter if the
interest of that person is adverse in any material respect to the
interest of the former client unless the former client consents
after disclosure; and DR 4-l0l(B) which provides that a lawyer
shall not knowingly reveal a confidence or secret of his client,
use a confidence or secret of his client to the disadvantage of
the client or for his own advantage or that of a third person
unless the client consents after full disclosure.  See also ECs
4-4 and 4-5.

The committee has previously opined that a potential client's
initial consultation with an attorney creates an expectation of
confidentiality which must be protected by the attorney even
where no attorney-client relationship arises in other respects. 
LEO #1453.  However, the committee recognizes that the
preservation of confidentiality must be based upon a case-by-case
determination as to the the lawyer's actual receipt of a
potential client's secrets or confidences.  In certain
circumstances, the law firm may have an obligation to put the
prospective client on notice that no attorney-client relationship
exists between the firm and the prospective client until the firm
accepts the engagement.  See Bridge Products, Inc. v. Quantum
Chemical Corp., l990 U.S. Dist. LEXIS 50l9 (N.D. Ill. l990)
(counsel interviewed, but not hired, by the plaintiff was
disqualified from representing the defendant because the
plaintiff had disclosed confidential information relevant to the
defendant's defense); Formal  Op. 90-358 (l990) ABA Comm. on
Ethics and Prof. Resp. (protective guidelines for lawyers).  

In the facts you present, the committee is of the opinion that,
despite the indication that the present divorce matter is based
upon a later separation, it is substantially related to the
earlier potential divorce upon which the wife consulted the
lawyer.  Further, the committee is of the view that the lawyer
actually did receive confidential and secret information during
the prior consultation with the wife.  Thus, the committee opines
that any representation of the husband in the divorce matter
would be improper absent the wife's consent following full
disclosure.  Furthermore, since the prohibitions under DR 4-l0l
are considerably broader than the attorney-client privilege, the
committee is of the further opinion that the secret information
may not be revealed even if it is subject to discovery.  See LEO
#452; Greene v. Greene, 4l8 N.Y.2d 379 (Ct. App. l979).

To the extent that this conclusion is in conflict with the
conclusions of prior Legal Ethics Opinions #3l8, 337, 888, and
1189, those opinions are hereby overruled. 

Committee Opinion
August 12, 1993