Conflicts lie at the core of many inquiries of bar counsel. They can be difficult to assess. A particular area of difficulty is whether duties to a former client create a conflict that prohibits representation in a new matter.
Let’s use the following as our baseline:
- Lawyer represented Former Client in Matter 1. The representation has concluded and there is no doubt that Former Client is, as the name suggests, a former client.
- New Client would like to hire Lawyer in Matter 2.
We begin with V.R.Pr.C. 1.9(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.”
So, the key questions are:
- Is Matter 2 the same as or substantially related to Matter 1?
- If so, are New Client’s interests in Matter 2 materially adverse to Former Client’s?
It’s not always productive to get stuck on the rule’s language. It can be easier to remember that the Supreme Court long ago described the rule as prohibiting lawyers from “switching sides.”
Still, let’s go through the analysis.
Are the two matters the same or substantially related?
While the answer to the former is often obvious, the answer to the latter frequently isn’t. It’s critical to remember that the answer doesn’t turn only on the nature of the matters themselves. Rather, we must consider the nature of the information that the lawyer obtained in the first representation. As Comment  states:
- “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 representation would materially advance the client’s position in the subsequent matter.” (emphasis added).
This scenario arises in many contexts. One is when a lawyer represents a client in a matter in which a former client is a witness for the other side. Often, the lawyer will have received confidential information from the former client that would materially advance the new client’s defense by undermining the former client’s credibility as a witness. Thus, while the two matters might appear on the surface to have nothing to do with each other, under the rule, they might be substantially related.
One last point on the “substantially related” question: if two matters are substantially related, it’s irrelevant that the lawyer doesn’t remember anything about the first. Knowledge of information as would ordinarily have been disclosed in the course of the representation is presumed and we will not force the former client to disclose it to protect it.
Okay, so let’s assume that the two matters are the same or substantially related. The next question is whether the new client’s interests are materially adverse to the former’s.
Last year, the ABA Standing Committee on Ethics & Professional Responsibility published Formal Opinion 497 – Conflicts Involving Materially Adverse Interests. I blogged about it here.
Per the opinion, there are 2 situations in which material adversity is clear:
- Suing, litigating, or negotiating with a former client. I like the Committee’s use of two questions: in litigation, are you on the other side of the “v”? Or, in a transaction, are you sitting on the other side of the table?
- Attacking your own prior work or legal advice.
Next, the opinion advises that material adversity often, but not always, exists when competent representation will require a lawyer to cross-examine a former or prospective client.
Finally, the Committee notes that material adversity can exist even in the absence of direct adversity. For instance, it
- “may exist when the former client is not a party or a witness in the current matter if the former client can identify some specific material legal, financial, or other identifiable concrete detriment that would be caused by the current representation. However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client’s interests suffices.”
No Conflict? Continue to Exercise Caution,
Let’s assume that the new matter is not the same as or substantially related to the former matter, and the new client’s interest are not materially adverse to the former client’s interests. In my judgment, that’s not the end of the lawyer’s analysis. To me, competent representation includes asking “self, do client and I want to deal with this?” That is, conflict or not, people are (naturally) upset to find their lawyer on the other side of the v or the table. A motion to disqualify will cost the new client time and money. Moreover, the former client might file a disciplinary complaint. Even if it is dismissed, it will weigh on the lawyer while pending. Sometimes close enough is, in fact, close enough.
In closing, I remain of the opinion that when potential conflicts arise, it’s important to trust your gut. That said, I hope that today’s post provides a bit more insight into the rules.
As always, let’s be careful out there.
 Even if they aren’t substantially related, the lawyer might still have a conflict. Rule 1.9(c) prohibits the lawyer from revealing information related to the representation of the former client, as well as from using information related to the representation to the former client’s disadvantage. If complying with that duty creates of significant risk of materially limiting the representation of the new client, the lawyer has a conflict under Rule 1.7(a)(2).
 Here, don’t spend too long trying to convince yourself “but the conviction, testimony, or conduct relevant to my former representation is public record.” That is NOT the standard. As regular readers know, the fact that information relating to the representation of a former client is “public record” doesn’t necessarily mean that it’s “generally known.” Says who? This blogger.