Question:  May Attorney represent Father against Mother in various motions related to custody, family access, and contempt, where Attorney previously represented Mother and Father jointly in a financial transaction and for estate planning?
Answer:  Mother is Attorney’s former client under Rule 4 dash–1.9.  If any one of Father’s pending matters is “the same or a substantially related matter” to any of the previous representations of Mother by Attorney, Attorney must have Mother’s informed consent, confirmed in writing, to represent Father in the matter(s).  For purposes of Rule 4 dash–1.9, matters are substantially related “if there . . . is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  Comment [3].  Whether any one of the actions is substantially related to a prior matter for which Attorney represented Mother is a factual question about which an informal opinion cannot be issued without additional facts.  Regardless of whether the matters are substantially related, Attorney is prohibited by Rule 4 dash–1.9(c) from using or revealing information relating to any prior representation of Mother except as the Rules would permit or require with respect to a client.

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