These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 Back to main menu

  Print This Leo
LEO NumTopicsSummary

2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer represented a client in contempt proceedings in which the client seeks arrearages from her ex-husband under a property settlement agreement. The ex-husband later hires the same lawyer to represent him on unrelated matters. Both the original client and the ex-husband sign waivers of conflicts. Five years later, the ex-husband hires the lawyer to represent him on criminal and traffic charges, and he and the original client again sign waiver forms. However, the ex-husband now objects to the lawyer's continued representation of the original client in seeking the arrearages.Because the lawyer's representation of the ex-husband ended in 1992, the ex-husband is a former client of the lawyer. A lawyer may be adverse to a former client unless the matters are the same or "substantially related" or unless the lawyer gained confidential information that can now be used against the former client. In discussing the "substantially related" standard, the Bar used the following terms: "involve either the same facts . . . the same parties . . . or the same subject matter;" "essentially the same, arise from substantially the same facts, or are by-products of the same transaction;" "entail virtually a congruence of issues or a patently clear relationship in subject matter." The Bar concluded that the lawyer's representation of the ex-husband is not "substantially related" to the lawyer's representation of the original client.The Bar could not determine if the lawyer would have learned pertinent confidences from the ex-husband, because the "ex-husband's earnings, employment, ability to earn, assets, use of earnings, lifestyle and life" could be material to the original client's contempt proceedings.The Bar acknowledged that both the original client and ex-husband had consented on two specific occasions to the simultaneous representations, but held that "it is doubtful that [the lawyer's] consent from ex-husband, as well as Client, cured [his] conflict of interest in his simultaneous representation of both." The Bar indicated that "in any event, consent is not a contractual obligation and a client under certain circumstances may withdraw the consent." The Bar held that the lawyer had "an incurable conflict" and must withdraw from the representation of the original client. [The Bar overruled as "overbroad" its initial Opinion that client consent may be withdrawn at any time.]

Copyright 2000, Thomas E. Spahn