Ethics Counsel on www.OKbar.org

Taking on Matters Adverse to Former Clients (Part 2)

By Gina Hendryx, OBA Ethics Counsel

The following is part two of a three-part series on conflicts in representations adverse to a former client.

Part one of this series delved into the ethical considerations faced when a lawyer takes on a matter that is adverse to a former client. A lawyer may not represent a present client against a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing. This article will consider the ethical implications when it is the lawyer’s former firm, rather that the lawyer personally, that represented someone with interests adverse to the lawyer’s client. For example, Lawyer Smith was an associate at Alpha and Beta Law Firm during the time the firm represented Client A in a nasty divorce. The case is over and A has remarried. Lawyer Smith has moved to a new firm, Omega Law Offices. Omega’s prospective client B is currently married to A and is seeking a divorce. Client A claims Omega has a conflict because of Lawyer Smith’s prior employment. May Lawyer Smith and Omega Law Offices represent client B against Alpha and Beta’s former client?

Oklahoma Rule of Professional Conduct (ORPC) 1.9 (b) states:

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9 (c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

In our scenario, Smith and his new firm would be disqualified if Smith had actually acquired information relating to client A that would be protected under Rules 1.6 (confidentiality) or 1.9 (c) during his prior employment with Alpha and Beta. However, if while at his former firm, attorney Smith received no confidential information about client A and had no part in the representation, then Smith and his subsequent firm may represent client B in this new matter.

Rule 1.9 (b) and the comments to Rule 1.9 allow a lawyer to rebut the presumption that while at a former firm he received confidential information about a client of the firm. Comment [5] to Rule 1.9 states:

“Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9 (c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10 (b) for the restrictions on a firm once a lawyer has terminated association with the firm.”

Courts are looking more and more to the actual involvement of an attorney in a matter and allowing the attorney to rebut the presumption that he received confidential information by mere virtue of his employment status. Courts are evaluating the former representations and the lawyer’s involvement in same. Comment [6] to rule 1.9 gives guidance for this review:

“Application of paragraph (b) depends on a situation’s particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.”

In Adams v. Aerojet-General Corp., 104 Cal. Rptr.2d 116, (Cal. Ct. App. 2001) the court held that a lawyer who changes firms is not presumptively disqualified from litigation wherein a former client of his former firm is the adverse party. The court stated that “A rule of automatic disqualification based solely on a lawyer’s past association in a firm and without inquiry into his actual exposure to the former client’s secrets sweeps with too broad a brush.”

Comment [6] suggests a need to evaluate the type of practice and the manner in which the lawyers work within the firm to determine whether a lawyer has actual knowledge of a client’s secrets. Facts to consider include:

  • Do lawyers within the firm have wide access to information about other lawyers’ cases?
  • How and where are case files maintained within the firm?
  • Do the lawyers within the firm regularly discuss their cases with each other?
  • Does the firm hold case reviews, firm meetings, or other assemblies wherein cases and/or clients are discussed?
  • Does a review of time records, affidavits, court docket sheets, etc. confirm that the lawyer has had little or no exposure to the file?

Whether the lawyer had access to confidential information will be a question of fact to be determined by a host of factors specific to each representation. It is insufficient to deny knowledge of any relevant confidential information or to deny any present recollection of confidences. The lawyer will need to provide affirmative evidence and testimony confirming his lack of involvement in the subject matter. See Dieter v. Regents of University of California, 963 F. Supp. 908 (E.D. Cal. 1997) and Kassis v. Teacher’s Ins. & Annuity Ass’n, 695 N.Y.S.2d 515 (N.Y. 1999).

Next month this column with review the process for disqualification of an attorney with a Rule 1.9 conflict.

Originally published in the Oklahoma Bar Journal -- Oct.11, 2008 -- Vol. 79; No. 26.