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| Analyzing ABA Model Rules' 1.8's and 1.9's "material adverse" standard; noting that ABA Model Rule 1.7 contains a different standard: "directly adverse;" acknowledging that those two standards are different; "While material adverseness is present when a current client and former client are directly adverse, material adverseness also can be present where direct adverseness is not."; attempting to define the "material" standard; "However, 'material adverseness' does not reach situations in which the representation of a current client is simply harmful to a former client's economic or financial interests, without some specific tangible direct harm."; providing examples of "material adverseness:" (1) in the same matter or in a "substantially related matter" in which the lawyer had represented the former client, "being on the opposite side of the "v" from a former client in litigation or "across the table, so to speak, from a former client and negotiating against that former client in transactional matters"; (2) "When a lawyer represents a current client challenging the lawyer's own prior work done for a former client on the same or a substantially related matter, the situation creates a materially adverse conflict."; (3) examining a former client on the same or substantially related matter, maybe even "where no information from the prior representation will be used;" (pointing to ABA LEO 367 (10/1/92) for the suggestion that "a lawyer may avoid the potential conflict altogether by having the current client retain separate counsel to examine the former client, and screen the lawyer with the conflict from participating in the examination of the former client or sharing with separate counsel any information from the prior representation;" explaining that a lawyer may proceed despite a conflict if the former client consents, but warning that a lawyer must obtain an explicit consent if she wants to use the former client's confidential information; "Informed consent to waive a conflict under Rule 1,9(a) will not, however, waive the lawyer's obligation to maintain the confidentiality of all information learned during the prior representation. To allow the use or disclosure of information protected by Rule 1.6, the former client also must provide informed consent pursuant to Rule 1.6(a)."; summarizing as follows: "'Material adverseness' may exist when the former client is not a party or a witness in the current matter if the former client can identify some specific material legal, financial, or other identifiable concrete detriment that would be caused by the current representation. However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client's interests suffices." |