Don’t remember? Doesn’t matter.

I’m on pace to receive approximately 1200 inquiries this fiscal year.  That number has remained steady over the past few years.

The most common inquiry topic?

As has remained steady since I switched to bar counsel in 2012, conflicts of interest.

I post today to (hopefully) disabuse lawyers of a notion often expressed in inquiries:  “but Mike, I don’t remember anything about the prior representation, so it can’t be a conflict.”

Caution

That is NOT the standard.

Rule 1.9 sets out a lawyer’s duties to former clients.  Here’s paragraph (a):

  • “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.”

The test, then, isn’t whether the lawyer remembers anything about the prior representation.  Rather, it’s whether the new person’s matter is the same as or substantially to the matter in which the lawyer formerly represented a client.

Whether matters are “substantially related” is a blog for another day. Or, you can call me.  Or, you can read Comment [3] to Rule 1.9.  For now, I want to focus on a single point:

  • if the new person’s matter is the same as or substantially related to the former client’s matter, hard stop.

Says who?

The Vermont Supreme Court.

In 1997, the Court issued an opinion in State v. Crepault.  Among other things, the Court considered the defendant’s argument that her conviction should be reversed for two reasons, one of which was the State’s alleged failure to disclose that the prosecutor had formerly represented the defendant in a substantially related matter.

In short, the Court concluded that the criminal prosecution was substantially related to a matter in which the prosecutor had formerly represented the defendant.  Then, the Court stated:

  • “Once a substantial relationship between the matters is found, ‘the court need not inquire whether the attorney in fact received confidential information, because the receipt of such information is presumed.'” (citation omitted).

In other words, don’t remember? Doesn’t matter.

Why?

Well, the Court answered that too.

  • “The purpose of the presumption is to avoid ‘put[ting] the former client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ”  (citation omitted).

So, when someone asks you to represent them in a matter in which their interests are materially adverse to those of a former client, if the two matters are substantially related, Rule 1.9(a) applies and you need the former client’s informed consent, confirmed in writing, to proceed with the representation of the new client.  It matters not whether you remember anything about the prior representation.

I can hear you now.  “Ok, Mike.  But what if the two matters aren’t substantially related?”

My friends, please.

As a blogger, answering that question poses a conflict of interest! I can’t put all my content into a single post!  So, ’tis a blog for another day.

For now, if two matters are substantially related, don’t forget:

Don’t remember? Doesn’t matter.

 

 

3 thoughts on “Don’t remember? Doesn’t matter.

  1. Hobson’s choice is a choice between the thing offered and nothing at all. The Supreme Court in State v. Crepault was describing a dilemma, which is troubling in and of itself but is not a Hobson’s choice.

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