Lawyer who has formerly represented a client may not represent another person in the same or a substantially related matter where the present client’s interests are materially adverse to the former client
“The purpose of this letter is to request a formal opinion
from your office regarding whether my law firm should be
disqualified from representing the Plaintiff Corporation A
I believe that all of the relevant facts are set out in the
following documents which are enclosed:
1. Complaint filed by Corporation A against Corporation B
and Mr. Jones for damages arising from an alleged breach
of equipment lease and on a personal guaranty.
2. Answer and counterclaims of Corporation B and Jones.
3. Amendment to answer and counterclaims.
4. Corporation A’s answer to counterclaims.
5. Appearance of Lawyer A as counsel for Corporation A.
6. Defendant’s Objection to Appearance of Attorney, with
attached Exhibits A, B, and C.
7. Letter from Lawyer X to Judge Rite, with referenced
8. Response of Lawyer A’s firm in opposition to Defendants’
‘Objection to Appearance of Attorney’ with attached
Exhibits 1 through 6.
Judge Rite has asked that I request this opinion from your
office. Enclosed is a copy of the order which I am
submitting to Judge Rite which I expect will be signed
The documents submitted with your request for opinion show
that your firm is presently representing Corporation A
against Corporation B and Mr. Jones. Corporation B is in
business of designing and providing printed business forms.
Jones is the president and sole stockholder. This lawsuit
was filed on and deals with an alleged breach of an
equipment lease/purchase agreement by Corporation B and
Jones. There is a counterclaim and a third-party complaint
as well. The lease agreement was entered into on July 29,
1988. Corporation A is claiming damages in the amount of
$9,320.00 as a result of the breach.
During 1991, Lawyer A’s partner (“Partner”) represented
Jones when he was considering the formation of another
corporation which would offer consulting services to the
same clientele that Corporation B serviced. Partner met
Jones on one occasion and with his accountant on another.
Prior to this, Partner had never had any dealings with
either man. Partner met with the accountant, Mr. Smith, and
sent a letter the next day confirming “the key points we
examined”. In August, Partner met with Jones about forming
the new company. The next day, he sent Jones a four page
letter setting out “the essential facts you imparted to me
together with my recommendations for further
After that, there was no further contact between Partner
Jones or the accountant. At the end of August, Partner sent
a bill for his services. Partner has submitted an affidavit
of his association with Jones and all documents from his
file are attached as exhibits. There is no question that
Jones was a client of Partner’s for a brief period of time
and that he obtained information in the course of the
representation which would be confidential under Rule
Since Jones is a former client of Lawyer A’s firm, Rule 1.9
must be addressed when another member of the firm
another party in a lawsuit against Jones. Any member of the
firm is disqualified under Rule 1.10 if Partner himself
would be disqualified by any type of conflict of interest.
Rule 1.9(a) provides that a lawyer who has formerly
represented a client may not represent another person in
“the same or a substantially related matter where the
present client’s interests are materially adverse to the
former client.” In determining whether two matters are
“substantially related”, the scope and subject of the two
matters must be examined. The issues involved must be very
closely connected. Partner’s representation of Jones
appears to have been brief and limited in scope as opposed
to an ongoing representation of Jones’ business. If the
trial court finds from the facts before it that Corporation
A’s suit is substantially related to the issues of
Partner’s prior consultation, then the firm is precluded
from representing Corporation A against Jones in the
case. If the finding is otherwise, then Rule 1.9(b) must be
Rule 1.9(b) is directed to the protection of client
confidences gained by a lawyer during the former
representation. Public information or information generally
known is not encompassed in the rule. There is a
that a lawyer has gained confidential information in the
prior representation of a client. That can be rebutted by
the lawyer. There is also the presumption that if a lawyer
possesses confidential information that he will potentially
use it in a way adverse to the former client. In that
if the confidential information is in any possible way
disadvantageous to the former client, the lawyer is
If it is found that Partner could use the information he
gathered during his short representation of Jones, in any
adverse way, or that he would have an advantage because of
his acquired knowledge, then he and the firm are
disqualified from representing Corporation A. If an
of the information reveals that it could not be used by
Partner, in any way, in the Corporation A case, then the
firm is not disqualified.
The Disciplinary Commission is not going to make any
or other findings determinative of this question. There is
motion to disqualify pending in the trial court and those
matters are for the court to decide. The Commission would
point out that the “appearance of impropriety” is not the
standard at this time and, that, in and of itself, does not
require a disqualification. That term is not used in the
Rules of Professional Conduct. The application of such a
standard tends to result in blanket disqualification
it does not take the actual relationship, if any, between
the subject matter of the two representations into account.