OPINION 494
February 1994

Question Presented

Is an attorney disqualified from representing a client in a situation where the husband had a brief consultation with the attorney in 1986, and the wife consulted the attorney in a subsequent divorce action in 1992?

Facts

The attorney generally charges a flat fee of $250.00 for an initial consultation, which typically lasts a few hours. The purposes of the initial consultation are to acquaint the potential client with Texas divorce law; the attorney's family law practice, and the attorney himself. If both the attorney and the potential client agree to the representation, the attorney becomes that client's legal counsel.

The wife went to the attorney in August 1992 to obtain legal representation in her pending divorce case. When her husband learned that his wife had retained the attorney as her legal counsel, his present attorney ("Lawyer") informed the wife and the attorney that the attorney could not represent the wife because of a conflict of interest. The alleged conflict arose from the husband's prior consultation with the attorney, nearly six years earlier regarding the possibility of divorcing the wife. After Lawyer informed the attorney that the consultation had occurred in December 1986, the attorney checked his own records to determine if the alleged consultation had occurred.

The attorney learned that the husband had an appointment set for 3:00 p.m. on Dec. 22, 1986. The attorney reviewed his bank records and found a deposit ticket, dated Dec. 22, 1986, that listed a check for a $250.00 consultation fee from the husband. However, the attorney had no independent recollection and no memory that, during the consultation, the husband gave him any facts with respect to the husband's marital or domestic situation. The attorney also had no independent recollection and no memory that, during the consultation, the husband actually considered the attorney for potential employment as the husband's legal counsel. The attorney had no documentation regarding the subject matter of the consultation, and the attorney's firm did not prepare any initial client files as a result of the consultation. The attorney had no independent recollection of talking to the husband regarding any marital, domestic, or other matter. Finally, the husband never asked the attorney personally to represent him.

Further investigation by the attorney in August 1992 revealed that the husband had consulted several other lawyers in the same city in late 1986 and early 1987 regarding his potential divorce. After those consultations the husband did not file for divorce. The wife filed for divorce from the husband in 1989. There is no evidence that the husband believed, or expressed a belief, that he had retained the attorney as his legal counsel in December 1986. The husband cannot prove that he communicated any confidential information to the attorney.

Discussion

The applicable rules of the Texas Disciplinary Rules of Professional Conduct which govern this situation are DR 1.05—Confidentiality of Information;
Rule 1.06(b)—Conflict of Interest: General Rule; and Rule 1.09 Conflict of Interest: Former Client.

Rule 1.05 of the Rules states:

(a) "Confidential information" includes both "privileged information" and "unprivileged information." "Privileged information" refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. "Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

Under Texas law "[a]n attorney or a law firm should be disqualified because of prior legal representation if the party moving for disqualification proves that an attorney-client relationship previously existed and that the factual matters involved in that representation 'were so related to the facts in the pending litigation that it creates a genuine threat that' the confidences gained in the former representation will be divulged to the attorney's present client. Evidence of specific similarities must be presented. Once such proof is made, 'the moving party is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney.'" Industrial Accident Board v. Spears, 790 S.W.2d 55, 57 n. 4, citing NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989).

Issue One

Did an attorney-client relationship exist between the husband and attorney?

Answer

Yes. The attorney argues an important factor in this case is that the attorney never actually represented the husband. Although the two apparently did not enter into an employment agreement, they did engage in a lengthy consultation, and the husband paid the attorney $250.00. Guidance regarding this issue is contained in the Preamble of the Disciplinary Rules, at section 12:

12. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. For purposes of determining the lawyer's authority and responsibility, individual circumstances and principles of substantive law external to these rules determine whether a client-lawyer relationship may be found to exist. But there are some duties, such as of that of confidentiality, that may attach before a client-lawyer relationship has been established.

Further, Comment 1 to Rule 1.05 states:

1. Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed or sought to employ the lawyer. Free Discussion should prevail between lawyer and client in order for the lawyer to be fully informed and for the client to obtain the full benefit of the legal system. The ethical obligation of the lawyer to protect the confidential information of the client not only facilitates the proper representation of the client but also encourages potential clients to seek early legal assistance. (Emphasis added)

In this situation, although the attorney has no independent recollection of the consultation, the consultation was documented on the attorney's calendar, and he received the $250.00 consultation fee from the husband. Considering that consultations with the attorney are usually in depth and lengthy, and that the husband paid the $250.00 consultation fee, it is probable that confidential information regarding the marriage was discussed during the 1986 consultation.

In considering these factors, along with the aforementioned portions of the disciplinary rules, the committee believes that, for the purposes of this discussion, an attorney-client relationship did exist between the attorney and husband.

Issue Two

Were the factual matters involved in the representation so related that there is a genuine threat that confidences gained in the former representation will be divulged to the attorney's present client?

Answer

Yes. The wife seeks to have the attorney represent her in a divorce from her husband, after the husband consulted with the attorney about a possible divorce from his wife. Obviously this factor is met.

In a similar opinion, (Opinion 294, TBJ, September 1964) the committee found that an attorney who represented the wife in a prior divorce action, which was dismissed upon reconciliation, could not ethically represent her husband in a subsequent divorce suit filed against her by her husband. The committee reasoned that an attorney's duty to preserve a client's confidence outlasts his or her employment, and employment which involves the disclosure or use of these confidences to the disadvantage of the client.

Conclusion

The attorney's representation of the wife would be in violation of the Texas Disciplinary Rules of Professional Conduct.