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 an action against a property insurance carrier, where you were formerly a member of a firm which on a case by case basis during your tenure there, provided and continues to provide, representation to that carrier. Your present relationship with your former firm consists of receipt of periodic payments for your interest therein and continued partnership in real estate investments with some of your former law partners.
Pursuant to Rule 1.9(a), if the matter in which your proposed client seeks representation is "the same or a substantially related matter in which [the client's] interests are materially adverse to the interests of the [property insurance carrier]," you are precluded from representing the proposed client, unless the property insurance carrier "consents after full disclosure of the circumstances and consultation."
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 the property insurance carrier, 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 upon your former firm's representation of the carrier, neither 1.9(a) nor 1.9(b), nor 1.6 as incorporated into 1.9(b) preclude the proposed representation then you must determine whether, pursuant to Rule 1.7(b), your representation of the above client will be "materially limited.. .by [your] own interests, unless:
(1) [you] reasonably believe 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 your proposed client of the possibility that your former firm will move to disqualify you for the conflict of interest.
Further, if you determine that the possibility of your former firm being retained by the carrier in the present matter may require you to move to withdraw for conflict of interest pursuant to Rule 1.7(b) (by virtue of your continued business relationship with you former firm), then you must explain that fact to the client.
- For Members
- For the Public