Ethics Question of the Month
September 2021
Breaking Up is Hard to Do
What happens if both husband and wife consult with the same family law firms, albeit at different times?
The Situation
Wife and Husband have been married for many years. Seven years ago, Wife was considering divorcing her Husband. At the time, unbeknownst to Husband, she consulted with Taylor, a family law attorney at the XYZ Law Firm. Wife wanted to know what her options were and how the property would be split if she were to go through with filing for divorce. She discussed her situation with Taylor, who offered advice and took notes during their conversation. At the conclusion of the meeting, Wife was still undecided, so Taylor prepared an engagement agreement and told Wife to sign and return it if she decided to retain the XYZ Law Firm. Ultimately, Wife decided not to go through with filing for divorce, and Taylor did not take any other steps to take her on as a client.
Seven years later, Husband decides to file for divorce. Unaware that Wife previously consulted with the XYZ Law Firm, he contacts and consults with another attorney at the XYZ Law Firm, Cory. When Cory does a conflict check, it turns up the single meeting with Taylor, who is still at the firm. Cory talks to Taylor, who has no recollection of the meeting or of Wife at all, including anything that might have been discussed. Taylor also says that if any notes were taken, they would have been discarded years ago in accordance with firm policy regarding consultations that don’t result in the firm being retained. When learning that Husband has retained the XYZ Law Firm, Wife makes clear that she will not waive any conflict of the XYZ Law Firm or its attorneys.
The Question
The Correct Answer is A Of 20 Responses, 50% are correct.
The Explanation
In Ethics Opinion 691, the Committee on Professional Ethics discusses in depth the duties that attorneys owe to prospective clients in the absence of a specific Texas ethics rule outlining those duties. First, the Opinion notes that the Preamble to the TDRPC states that “there are some duties, such as that of confidentiality, that may attach before a client-lawyer relationship has been established.”
What are those duties? The Opinion looks to Rule 1.05, which deals with confidentiality. That Rule defines “confidential information” to include information that is protected by Rule 503 of the Texas Rules of Evidence. Rule 503(a)(1)(B) states that a “client” includes a person who “consults a lawyer with a view to obtaining professional legal services from the lawyer.” The Committee concludes from this language that confidentiality attaches to any information provided to the attorney by a prospective client.
So does that create a conflict? The Opinion concludes that it does not create a conflict under Rule 1.09, which deals only with situations where the lawyer has formerly “represented” an adverse party. Here, Wife was never a client, so there is no conflict under Rule 1.09.
However, the Committee finds that consultation with a prospective client can cause a “adverse limitation conflict” under Rule 1.06(b)(2). That Rule prohibits representation when it reasonably appears to be limited by the lawyer’s or law firm’s responsibilities to a third person. Here, Taylor had a duty of confidentiality to Wife as outlined above, and that duty was imputed to the entire firm, including Cory, under Rule 1.06(f). The correct answer is A.
Bluebook Citation
Breaking Up is Hard to Do: Ethics Question of the Month - September 2021,
Texas Center for Legal Ethics
(2021), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-september-2021/ (last visited Apr 24, 2024)