Important Update on “Don’t Switch Sides” and Analyzing Former Client Conflicts.

Last week I posted a video in which I urged lawyers not to get lost in the language of V.R.Pr.C. 1.9(a).  Rather, when analyzing whether a conflict of interest exists between a prospective client and a former client, remember a simple concept:  don’t switch sides.

In both the video and a presentation that I did earlier this week at Vermont Law School, I argued that the idea “don’t switch sides” is, and long has been, the rule.

For example, with emphasis added, here’s the final sentence of Comment [2] to the current version of Rule 1.9:

  • “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”

And, stated more eloquently than “don’t switch sides,” here’s Resolution #8 of David Hoffman’s 50 Resolutions for Professional Deportment. Issued in 1836, Hoffman’s resolutions are among the earliest evidence of rules applied to lawyers’ conduct.

  • “It is a poor apology for being found on the opposite side that the present cause is but the ghost of the former cause.”

Indeed, it is!

Anyhow, in the video, I used something that had happened at that day’s basketball practice to explain why I think Rule 1.9 can be summarized as “don’t switch sides.”  I forgot to include an important component of the analysis.

It’s not uncommon for lawyers to ask: “Mike, is it okay to switch sides if I don’t remember anything about the former client or their matter?”

Short answer: no.  If the new matter is substantially related to the prior matter, we will presume that the lawyer received confidential information while representing the former client and we will not put the former client to the “Hobson’s Choice” of having to disclose confidences to protect them.

For a bit more, here’s a video update.