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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-14
Conflict
Your letter poses the following facts:
An attorney represented ""A"" in a divorce proceeding with ""B,"" which included a Stipulation between the parties involving the family dwelling. Two years after a Divorce Decree was entered, ""A"" and ""B"" entered into a final agreement as to the disposition of the family dwelling by which ""A"" was to buy out ""B's"" interest in the family in exchange for cash and a Note to be paid upon the sale of the family dwelling. Almost ten years after the parties entered into the final agreement, ""B"" died and the son of ""A"" and ""B,"" who still resides with ""A,"" was appointed personal representative and has asked the attorney who represented ""A"" in the divorce proceeding to represent the estate. The Committee assumes that the attorney presented ""A"" with respect to the final agreement regarding the disposition of the family dwelling. It also assumes that the family dwelling has not been sold so that the Note has not been paid.
Rule 1.9(a) of the Maryland Rules of Professional Conduct would apply to this situation. The Rule reads as follows:
RULE 1.9 Conflict of Interest: Former Client
A Lawyer who has formerly represented a client in a matter shall not thereafter:
- represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; ….
It is the Committee's opinion that the representation of ""A"" in a divorce proceeding with ""B"" ten years before and the representation of ""B's"" estate are not the same or substantially related matters unless the family dwelling has been sold and ""A"" refuses to pay the Note or there is a substantial likelihood that this will happen. If there is not a problem with the Note, the interests of ""A"" and ""B's"" estate are not adverse. However, if there were a problem with the payment of the note or if such a problem were to arise at a later time, the lawyer could not represent the estate, for he or she would be representing a client with a materially adverse interest to that of ""A"" with respect to specific transaction in which he or she previously represented ""A."" If the attorney had not represented ""A"" in the entering of the final agreement pursuant to which the Note was given by ""A"" to ""B,"" the representation of ""A"" in the divorce proceedings would be an entirely separate matter and would not preclude the attorney from representing ""B's"" estate in any event.
In addition, disqualification from subsequent representation of one with an adverse interest to a former client is for the protection of the former client and can be waived. Therefore, ""A"" could consent to the attorney representing ""B's"" estate but only after consultation. Such a consultation must include full disclosure and an explanation of the implications, including specifically, the possibility of the estate bringing suit against ""A"" in the event ""A"" does not pay the Note.
In summary, the Committee is of the opinion that as long as there are no problems with the collection of the Note given by ""A"" to ""B,"" the attorney's representation of ""B's"" estate would be ethically permissible. If the collection of the note became a problem, the attorney would have to withdraw from representing ""B's"" estate unless a prior consent to the representation of the estate had been obtained from ""A"" pursuant to the mandate of Rule 1.9(a).
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