Formal Opinion 145.
(1970)
Divorce Action Against Former Client

Should an attorney represent a husband in a divorce action against the consent of the wife when that attorney has previously represented the husband and wife?

The attorney for the husband states that he has previously represented the husband and wife in an adoption proceeding, condemnation proceeding, and may be representing the parties in an action on a promissory note. There is a dispute as to whether or not he has represented the parties in their partnership interest of restaurant operations.

The attorney for the wife has cited to the attorney for the husband Canon 37 of the American Bar Association and Opinion 136 of the Washington State Bar Association. Likewise, the case of Kurbitz v. Kurbitz, 77 Wn.2d 943 (1970), is familiar to both parties.

The attorney for the husband does not dispute the fact that he has formerly represented the husband and wife in the matter concerning property of the spouses, i.e. condemned property. Since the divorce proceeding naturally involves a division of property of every kind and nature, the matters cannot be wholly unrelated.

It is the unanimous opinion of the Legal Ethics Committee that the attorney for the husband should withdraw from the

pending divorce action. It is the opinion of the Legal Ethics Committee that there is seemingly impropriety in his continuance in the divorce action which necessarily involves property belonging to his present client and his former client, especially in view of the strong dissent by the former client. We refer you to ABA Informal Opinion No. 885 which discusses the duty of the court, upon noticing the conflict of interest by a lawyer acting as counsel in a case against a former client, to bar the attorney forthwith.

[See RPC 1.6, 1.8]