Bench & Bar September/October 2026

ETHICS CORNER

on using information to a former client’s disadvantage under Rule 1.9(c) are sepa rate issues from the Rules of Evidence, and ethics rules may, in many cases, trump the Rules of Evidence. It is these ethics rules that still require careful consideration. CONCLUSION AND PRACTICAL GUIDANCE It is my opinion that the more appropriate guidance is provided by KBA E-245, and the Shorter and Gray decisions. Specifically, the foundational issue is whether there is any protected information held by the lawyer that the husband did not already know. This is a confidentiality-driven inquiry, not a loy alty-in-the-abstract inquiry. In this type of examination it should be understood that when joint estate planning occurs it, by definition, involves shared disclosure of information that is not protected in a joint representation, assuming that all relevant financial, asset, and intent information was shared. Disqualification should not rest on a hypothetical presumption of whether you may possess protected confidential informa tion of one spouse that was not disclosed to the other spouse but whether there was, in fact, any non-disclosed information that the other spouse was unaware. The nature of any non-shared information is not relevant for these purposes; the inquiry is simply whether there was, in fact, any non-shared information. If you conclude that you do not possess any of the wife’s protected non-disclosed confidential information then you would be supported in your deci sion to now represent the husband in the divorce action. Assuming you decide to proceed with the representation then you should be prepared to defeat a potential argument for disqual ification by being able to demonstrate to the court that the prior representation was a “genuine joint representation,” that full disclosure of all material information was shared with both husband the wife, and that the wife cannot show that you possess any of her non-shared confidential infor mation which is not already known by the husband. From an ethics point of view, in order for you to be disqualified there would have to be a finding of an “actual conflict of interest” based on your possession of wife’s

non-disclosed confidential information and this is not a subjective discomfort or appearance test. Two final practical points. First, if you decide to go forward with the representa tion it would be wise for you to discuss with your client the likelihood that an argument over whether you should be disqualified will most likely result in a delay of the divorce proceedings and a delay may adversely affect your client’s interests or desires. Second, you should know that it would be inappropriate for you to charge your client for the time you take to resolve the dis qualification issue. A client should not be expected to finance the cost incurred when lawyers and the court are trying to resolve lawyer professional conduct issues. ABOUT THE AUTHOR SHELDON G. GILMAN recently retired from the active practice of law but remains involved in various law related matters. Gilman received his undergraduate degree from Ohio University and his law degree from Case Western Reserve University. After graduation from law school Gilman served four years as a member of the U.S. Army’s Judge Advocate General’s Corps with duty assignments at The Office of the Judge Advocate General and The Office of the Secretary of Defense. With regards to lawyer professional responsibility matters, Gilman continues to serve as a member of the Ethics Committee and has been a member of the Ethics Hotline for 30 years and has written more than 800 Hotline Informal Opinions and answered more than 500 telephone inquiries. He served as a member of KBA Ethics 2000 Committee which recommended the current revised edition of our Rules in 2009. ENDNOTES 1 [3] Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior repre sentation would materially advance the client's position in the subsequent matter. … 2 ISBA Ethics Opinions on Conflict of Interest - Transactional Matters (Referencing general principles). 3 North Carolina 2015 Formal Ethics Opinion 8. 4 NHBA Ethics Opinion 2001-02/1. 5 Professional Ethics of the Florida Bar, Advisory Opinion 95-4 (1997). 6 740 So.2d 352 (Miss. 1999). 7 No. E2001‑02470‑COA‑R3‑CV (Tenn. Ct. App. Sept. 19, 2002).

substantial relationship” argument when no separate secrets are found to exist. • In the case of Shorter v. Shorter 6 the court declined to disqualify the wife’s attorney who had previously han dled both joint probate and estate matters. The court held there was no substantial relationship between the earlier matters and the later domes tic litigation, and emphasized that the information at issue was either not confidential or would necessarily be disclosed in the divorce. • In the case of Gray v. Gray 7 the court rejected a motion to disqualify divorce counsel who had prepared wills for both spouses 10 years ear lier. The court found no substantial relationship because all informa tion was provided in the presence of both spouses, and the husband admitted he had disclosed no con fidential information outside his wife’s presence.

In addition to the above, consider ation should be given to Kentucky Rule of Evidence 503(d)(5) which creates an explicit joint-client exception to the lawyer–client privilege. When spouses jointly consult a lawyer on a matter of common interest, there is no privilege as to communica tions between them when those communications are

later offered in an action between them. This rule reinforces the idea that information shared in a genuine joint represen tation ordinarily does not support a later claim that the lawyer is using one spouse’s “secrets” against the other. However, the

absence of the law yer-client privilege does not resolve the ethics questions: confidentiality under Rule 1.6 and restrictions

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