Former Clients Rules
1.9(a) holds that a lawyer “shall not oppose a former client
in a ‘substantially related matter’ by representing another
whose interests are ‘materially adverse’ to the former client,
unless the former client consents after consultation.”
These rather vague terms might cause some confusion for a lawyer deciding whether or not he may oppose a former client. Interests are “materially adverse,” certainly, when one client’s victory means another client will suffer losses. “Substantially related matters” can only be defined, of course, on a case by case basis.
An attorney may be entitled to bring suit against a former client, so long as representation of the former client has ended and the present case does not involve any confidential communications made to the attorney by the former client. When the former matter is not “substantially related” to the present matter, a conflict might not be fatal to representation:
Take the example of a lawyer who is representing a client in a personal injury case, the plaintiff in a suit related to an automobile accident. The defendant is a former client of the plaintiff’s lawyer in a divorce action.
As the rules state, a lawyer may not oppose a former
client in a substantially related matter in which that client’s
interests are materially adverse to the interests of the present client,
unless the former client consents after a full disclosure.
During the course of representation, clients may divulge confidences that could be used against them in many ways. For clients with serious legal problems, it may be very difficult to confide in someone. If a client knew that someday her confidences could be used against her, she probably would rather take on a case on her own rather than confide in an attorney. That is why, as we learned, we consider the attorney-client privilege to be so important – to foster communication between an attorney and client.
The rules are concerned that by opposing a client in a “substantially related matter,” a lawyer will invariably use confidential information gleaned from the former client against the former client. Thus, a lawyer may not oppose a former client of any firm the attorney has been associated with in a substantially related matter, unless the former client consents.
Even with consent, however, most lawyers will agree that the chance of divulging confidences is too great when advocating with zeal for a present client against a former client. Lawyers want to do everything they can for their clients. It would be bad for both present and former clients, and highly unethical, to hold back information from a present client or to play some kind of “balancing game” whereby the interests of the present client are weighed against the confidentiality obligations to a former client. This sounds difficult, and it is. That is why even with consent from a former client, it is generally better for a lawyer to steer clear of such conflicts.
Law firms are required to maintain accurate records regarding all former clients in order to protect against conflicts. In law clinics, where there is an especially high volume of client traffic, keeping track of former clients might be a tough task. Take this example:
EXAMPLE: Kathy is a lawyer for the Domestic Violence Unit of a law clinic in New England. The clinic is located inside the county courthouse and takes a large number of walk-in clients – sometimes upwards of five or six a day. The lawyers usually limit their help to people of low income, and most of their clients come from the same neighborhoods in the city. Unfortunately, there are many clients who need to obtain restraining orders, who are in the middle of a divorce, who need help from child protection services, and who seek child support. The clinic has to be very careful when representing a client for a restraining order against an abusive husband, that they have not represented the husband in an action before—or at least that any former representation of the husband was not for a similar matter.
EXAMPLE: Kathy is representing a woman who is petitioning the court in an ex parte hearing for a restraining order against her husband, who has a violent temper and threatened to kill her.
The ex parte hearing is a chance for the court to hear the complainant’s side only and decide whether or not to issue a temporary restraining order. If an order is issued, after 10 days, the defendant is entitled to another hearing to state his case and explain why the restraining order is unnecessary. The complainant is again entitled to state her case to the court, but this time the defendant is present to rebut. If the judge so decides, he will issue a permanent restraining order.
EXAMPLE Kathy previously represented the husband in a divorce, but that was long ago. She has lots of information about the husband’s past drug abuse and violent temper – information that perhaps even the man’s present wife, Kathy’s present client, does not know of. This information could potentially be used against the husband in seeking the restraining order. Given the potential harm that could come to the wife because of the husband’s historically violent temper, one may argue that Kathy’s knowledge could be used for good – to protect her client’s life in a time of great danger. Nevertheless, the ethical obligations that Kathy has to her former client do not end when the representation ends. Kathy still owes a duty of confidentiality. Perhaps Kathy’s knowledge has applicability in the present case, and perhaps it can be thus used for good. But Kathy could also bring unnecessary harm to her former client – she could use her information to gain an unfair advantage, and possibly “dig up dirt” about the husband that has no applicability in the present case.
These issues are salient in a case where a lawyer is representing a client against a former client in a substantially related matter. Divorce and issues of domestic violence are related legal topics. It would be a different story if Kathy had represented the husband in a securities regulation case beforehand. The information she would have obtained from that case probably would have little bearing on a domestic violence case (although it still might be a substantially related matter if finances were integral to the reasons for the domestic dispute).
All in all, even if Kathy had obtained the consent of her former client to represent his wife, it would behoove her NOT to take on this case. As we will soon see, it might well be necessary for the whole legal clinic to avoid representing the wife in her disputes – because the legal clinic maintains records, and there is simply too great a chance that records regarding the husband will be accessible to another lawyer in the clinic who decides to take over the wife’s case from Kathy. Disqualifying other lawyers within a firm due to former client problems is known as “imputed disqualification.” Imputed disqualification is the subject of the next section.