Informal Opinion Number: 970100

QUESTION: Husband and Wife are seeking a divorce and have each retained their own attorneys. Attorney has represented Wife in the past, before her marriage, in a worker´s compensation matter and then on other small matters throughout the marriage. Attorney also represented Husband on several matters, including the defense of a lawsuit brought by one of Husband´s creditors. During that suit, Husband asked Attorney to prepare a Quit Claim Deed transferring ownership of his residence from him individually to Husband and Wife jointly. Husband and Wife now dispute the purpose of the property transfer in the divorce proceedings. Husband´s divorce attorney indicated that he will subpoena Attorney to testify as to the purpose of the preparation of the Quit Claim Deed. What is Attorney´s duty of confidentiality to Wife with respect to the transaction or due to prior representation on non-related matters. ANSWER: If Wife could reasonably believe that Attorney was representing her interests in the preparation of the Quit Claim Deed, Attorney owes a duty of confidentiality to Wife under Rule 1.6 of Supreme Court Rule 4, the Rules of Professional Conduct. Attorney´s past representation of Wife would be a factor to consider in making this determination. Wife could consent to Attorney´s testimony. If Attorney is subpoenaed and Wife has not consented, Attorney must resist the subpoena and fully raise the issue of confidentiality to the court. If the court orders Attorney to testify, Attorney should seek to have the order as specific and limited as possible. If Attorney is ordered to testify, it is not necessary for Attorney to take the issue to a higher court to avoid violating the rules.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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