You have asked this Committee for an opinion as to whether you may continue to represent a client in an action to establish paternity of a minor child, born during her marriage, in which the husband denies paternity. You plan to use as evidence against the husband a name change petition signed by wife and husband in which you represented them both. It is the opinion of the Committee that, under the facts and circumstances as you have recited them, you may not continue the representation of the wife because of the non-waivable conflict of interest arising from your intention to use, to the disadvantage of your former client, the husband, information gained during the course of the prior representation.
Rule 1.9 of the Code of Professional Conduct provides:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) 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 a full disclosure of the circumstances and consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.
This rule prohibits an attorney from using information related to the prior representation to the disadvantage of the former client unless: (1) the client consents; (2) circumstances exist which the attorney believes make it necessary to prevent fraud, criminal acts or substantial injury; (3) in a dispute between lawyer and client or; (4) the information is generally known about that client. See also Rule 1.6. It would appear from these facts that the paternity of the child does not qualify as information generally known about your former client although it is contained in a filed court document. The Committee questions whether such a document, since it involves a minor, would be accessible to anyone other than these parties. Although another attorney representing the wife may use the name change petition, Rule 1.9 prohibits you from doing so. While this result would appear to elevate form above substance, you are constrained by the confidentiality of information you obtained during your representation of the husband, a duty which continues after the lawyer/client relationship has terminated. Rule 1.6(d).
As to l.9(a), the terms substantially related have not been specifically defined. However, it would appear obvious that the paternity petition and the name change matter involving the same minor child are substantially related 1. This Committee addressed a similar conflict of interest in Professional Guidance Committee Inquiry 88-11 in which the prior review by an attorney of an employment agreement for the husband precluded the attorney's subsequent representation of the wife in a divorce action because of the substantial relationship of the employment agreement to the economic issues in the divorce. For these reasons, it would be prudent for you to withdraw from the representation of the wife at the earliest possible time to avoid undue hardship. Rule 3.7(a)(3).
1. You have not given us a description of the allegations contained within the name change petition but for purposes of discussion we have assumed that it contains averments concerning paternity.