You have asked the Committee for an opinion as to whether consistent with the Rules of Professional conduct, you may undertake representation of a client in action against a self-insured defendant (hereinafter "D") where you were formerly the owner and general manager of a law firm which represented D for several years. You have informed the Committee that in February of 1991, you ended your representation of D. Further, you informed us that when your firm did represent D, all the work was handled by one of your employee/associate who continued to handle D's cases after you severed your relationship with D. It is not clear to the Committee whether your associate still represents D, nor is it clear what your present relationship with your associate is.
Some six months after your representation of D ended a new client (hereinafter "P") came to you for representation in a lawsuit against your former client, D. While you assert that you have no proprietary or other information of an adverse nature to D, D's present attorney takes issue with that position and objects to your representation.
Your representation of P may be precluded by Rule 1.9 (a) or 1.9 (b). Pursuant to Rule 1.9(a), if the matter in which P seeks representation is "the same or a substantially related matter in which [the client's] interests are materially adverse to the interests of [D]," you are precluded from representing P unless D "consents after full disclosure of the circumstances and consultation." Here, D, through its counsel, has objected to your representation; however, it is impossible to ascertain from the facts provided whether the present lawsuit involves matters substantially related" to your prior representation of D. However, the fact that D was represented primarily by your associate/employee will not protect you; under Rule 1.10 all his knowledge of D's business will be imputed to you.
If Rule 1.9(a) does not preclude representation then you still must determine whether, pursuant to Rule 1.9(b), the proposed representation will involve using information to the disadvantage of D, unless permitted by Rule 1.6 or "when the information has become generally known." Rule 1.6(a) provides in part that "a lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation..." If you determine that, based on your former firm's representation of D, neither 1.9(a) nor 1.9(b) nor 1.6 as incorporated in 1.9(b), preclude the proposed representation, then you must determine whether pursuant to 1.7(b) you should not undertake P's representation. Rule 1.7(b) states:
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after full disclosure and consultation....
Pursuant to Rule 1.7(b) (2), requiring full disclosure and Rule 1.4(b) governing communication with the client, you must advise P that your former client, D, has objected to your representation of P, will almost certainly move to disqualify you for conflict of interest. This could certainly prejudice your new client P, and the reasons why P may be prejudiced must be carefully explained to him.
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