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Opinion 691

Question Presented

Under the Texas Disciplinary Rules of Professional Conduct, when may a lawyer represent a client adverse to a former prospective client of the lawyer or another lawyer in the lawyer’s firm?

Husband and Wife are married. Five years ago, Wife approached Lawyer A to discuss the possibility of retaining Lawyer A to bring a divorce action against Husband. Wife met with Lawyer A for approximately 45 minutes. Lawyer A presented Wife with an engagement letter, but Wife declined to retain Lawyer A.  Wife took no further action to divorce Husband.

Lawyer B has been Lawyer A’s partner for many years. Recently, Husband asked Lawyer B to represent him in divorcing Wife.  Before entering into a client-lawyer relationship with Husband, Lawyer B learned that Wife had previously met with Lawyer A to discuss potential divorce representation.

Lawyer A retained no notes or other documents from his meeting with Wife and claims to have no recollection of any information shared by Wife during the meeting.  Wife is unwilling to consent to Lawyer B’s representation of Husband in the divorce or otherwise waive any conflict of interest arising from her prior consultation with Lawyer A.

Lawyer B asks whether the Texas Disciplinary Rules of Professional Conduct prohibit him from accepting representation of Husband in the divorce.

Bluebook Citation

Tex. Comm. On Professional Ethics, Op. 691 (2021)