Don’t Switch Sides.

Last month, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the current rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

To date, I’ve blogged that Hoffman’s first resolution can be summarized as Don’t be a JerkActually, looking back, the first 6 resolutions fall under that title.  Today I want to focus on Resolution #8.  It addresses conflicts of interest and is simple: don’t switch sides.

Aside –  talk about conflicts! As I write this, I just learned that the Miami Marlins traded Giancarlo Stanton to the New York Yankees. The Marlins executive who greenlit the trade is Derek Jeter who, of course, is Mr. Yankee.  I have a great imagination.  Nevertheless, not even I can imagine a situation in which a lawyer does something akin to retiring from the Yankees, taking a job running the team that has one of the Top 3 players in baseball, then immediately trading that player to the Yankees.  Whatever the scenario, it’d certainly end in disbarment.  Lest I violate the maxim “Don’t Be a Jerk,” I won’t say anything further.

Back to Resolution #8. Here it is:

  • 8.    If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause.

Compare that to Rule 1.9(a):

  • Duties to Former Clients. A lawyer who has formerly represented a client in a matter shall not thereafter 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 gives informed consent, confirmed in writing.

Conflicts can be difficult to assess.  As you work your way through them, try to distill them to the most basic level.  181 years later, Hoffman’s resolution provides excellent guidance: don’t switch sides.

Back to Jeter – I guess he didn’t switch sides.  Indeed, that’s the problem.  As a Marlin, he’s still a Yankee!  Serenity now!

conflict

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