These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 2 - Adversity to Former Clients
LEO NumTopicsSummaryDate
0357

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

3/10/1980
1302

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

10-Former Government Lawyer Conflicts

[DISAPPROVED by the Virginia Supreme Court 9/12/90] A law firm hiring a former Assistant County Attorney may avoid any imputation of the lawyer's individual disqualification by imposing a "Chinese Wall."1/4/1990
1538

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

20-Government Official Conflicts

51-Government Attorneys

A Commonwealth's Attorney may not act in a quasi-judicial capacity involving a grievance when ten years earlier the lawyer (while in private practice) worked with the grievant in a related matter. 6/22/1993
1066

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2-Adversity to Former Clients

71-Representing Corporations

A corporate lawyer represented one of the corporation's employees in a dispute over the building of his home. The representation later ends, and the employee never pays the lawyer. Approximately one year later, the employee leaves the corporation. The lawyer may now represent the corporation in a dispute with the former employee over a non-competition agreement, because the current matter is not substantially related to the representation involving the former employee's home, and the lawyer had not gained any material confidences during the earlier representation. 4/18/1988
1209

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

A county attorney may represent the Board of Supervisors in seeking review of the Board of Zoning Appeals' issuance of a special use permit even though the lawyer has represented the Board of Zoning Appeals on unrelated matters and will likely do so again. [Overruled to the extent inconsistent with Virginia LEO 1785, which held that a County Attorney who had advised a BZA in connection with a variance could not later represent the Board of Supervisors in a petition which named the BZA as a respondent.]2/16/1989
1679

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A criminal defense lawyer who represented one of four co-defendants in a criminal case may not join the firm of a lawyer who represents one of the other co-defendants, unless the client consents, because the two co-defendants are adverse (the first client will testify for the Commonwealth against the lawyer's new client).5/16/1996
0864

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2-Adversity to Former Clients

A firm may represent a client against a municipality, although it had previously represented the municipality on unrelated matters. [The Bar's summary erroneously indicates that the firm is currently representing the municipality.] 11/10/1986
ABA-409

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2-Adversity to Former Clients

10-Former Government Lawyer Conflicts

A former government lawyer who participated "personally and substantially" in a "discrete and isolatable transaction or set of transactions between identifiable parties" may not be involved on behalf of or adverse to the government without the government's consent, although other lawyers in the firm may do so if the former government lawyer is screened. In addition, the duty of maintaining confidences may prevent the former government lawyers' involvement adverse to the government "even where the representation involves general agency rules or policies and not a 'particular' matter (although the screening mechanism would still work). Therefore, the general conflicts rule would not bar a former government lawyer's challenge to agency rules even if the lawyer were "personally involved in their development and implementation" (because "rule making is generally not deemed to be a 'particular matter'"), although the former government lawyer might be prohibited from such a representation because of the confidentiality rule.These rules might apply to lawyers "specially retained" to represent the government in addition to full-time government employees, although "a viable argument can be made" that such lawyers' conflicts situations will be governed by the confidentiality rule and not the former government lawyer rule. The rule's definition of "matter" does "not include general agency regulatory and policymaking activity" or briefing of abstract principles of law," and thus is "substantially narrower than the definition of matter" under the confidentiality rule. A former government lawyer's "general knowledge" of "policies and practices of her former agency" are ordinarily not be considered disqualifying under the confidentiality rule. "Most lawyers who have represented organizational clients will inevitably have general information about the inner workings of the client, but we do not suppose such information is necessarily disqualifying" under the confidentiality rule. 8/2/1997
0807

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2-Adversity to Former Clients

57-In-House Lawyers

71-Representing Corporations

A former in-house general counsel to a corporation may not represent the lawyer's new employer in pursuing litigation against the former employer on matters in which the lawyer was involved as an employee of the former employer. This disqualification extends to the other lawyers on the general counsel's staff of the new employer. 6/25/1986
0718

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2-Adversity to Former Clients

57-In-House Lawyers

71-Representing Corporations

A former in-house lawyer may not represent a client against the former employer on a substantially related matter. The disqualification extends to the lawyer's entire firm. 8/30/1985
1419

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

57-In-House Lawyers

71-Representing Corporations

A former in-house lawyer who advised a corporation's subsidiary may not now be adverse to the subsidiary after leaving the company, even if the lawyer has no recollection of involvement in the pertinent matter and claims not to have any confidential information. 6/25/1991
1393

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

10-Former Government Lawyer Conflicts

58-Real Estate Lawyers

A home builder sued the buyer for failure to pay, and the buyer counterclaimed for construction defects. The buyer also complained to the local Board of Building Code Appeals, which was represented by the county attorney. The board found that the builder had complied with the code but its finding was overturned on appeal. The county attorney was later hired to represent the builder in the civil lawsuit with the home buyer. However, the county attorney was barred from the representation because the role was "substantially related" to the work the lawyer did as a public lawyer, and would also place the lawyer in the untenable position of having to challenge the findings of the Board that the lawyer had earlier defended. 3/21/1991
0345

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

A law firm may not represent a client in an indemnity action against a party formerly represented in the same matter by a new associate in the firm, unless the party consents. 12/4/1979
0284

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2-Adversity to Former Clients

32-Lawyers Acting in Other Roles (Miscellaneous)

A law firm may represent a client being sued by a former client unless it had acquired material confidential information from the previous client or its judgment would otherwise be impaired. The firm is not disqualified because one of its lawyers served as a member of the Board of Directors of the former client "several years" earlier. 12/20/1977
1454

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

15-Representing Other Entities - Miscellaneous

A law firm rendered an opinion to a federal agency which took over a financial institution. The law firm also represents the same agency in unrelated matters. The firm has now been asked to represent an executive of the financial institution in a grand jury probe related to the receivership.The law firm may not represent the executive if it had obtained material secrets or confidences while rendering an opinion to the agency or in its current unrelated representation of the agency. The representation would otherwise be proper as long as the agency and the executive consent.If adversity develops between the agency and the executive during the course of the representation, the law firm must withdraw from representing the executive in the grand jury proceeding and the agency in the unrelated matter. 3/13/1992
1407

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

A law firm represented a doctor in two malpractice cases. The doctor later appeared as an expert witness for plaintiff in a case defended by another of the firm's lawyers. The doctor denied ever having been a defendant in a malpractice action, but the defense lawyer learned from a partner that the firm had earlier represented the doctor on two occasions.The Bar ruled that this information was a "secret" (although it could be obtained from public records) because it was gained in a professional relationship. The Bar therefore prohibited the lawyer's continued representation of the client, because the lawyer could not effectively cross-examine the plaintiff's expert doctor (unless the doctor consented to disclosure of the confidential information). 3/12/1991
1414

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2-Adversity to Former Clients

A law firm represented a subcontractor on a state construction project. The law firm completed its work, but its bill was never paid. The firm later represented the prime contractor in dealing with the state in a dispute over the same project. The firm advised the prime contractor that it could not represent it if a dispute arose with the subcontractor, and likewise could not represent it (absent the subcontractor's permission) if a dispute with the state involved the subcontractor's work. The subcontractor objected to the law firm's representation of the prime contractor on any matter. The Bar held that the firm's former representation of the subcontractor was not related to its current representation of the prime contractor, and therefore that the firm could represent the prime contractor in its dispute with the state. If the representation later developed adverse to the subcontractor, the law firm would have to withdraw absent the subcontractor's consent to the continued representation. 5/14/1991
1626

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2-Adversity to Former Clients

67-Lawyers Acting as Guardians Ad Litem"

A lawyer acting as guardian ad litem for a child in a custody dispute may later represent the Department of Social Services in an appeal of a J&DR court ruling, because "there is an identity of interest between Child and the Department." 2/17/1995
1015

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer discussing the possibility of representing a husband in an uncontested divorce matter realizes that the lawyer currently represents the wife in an unrelated matter. The lawyer may not represent the husband and also may not represent the wife in the divorce (having discussed confidences with the husband) [the Bar does not address the possibility of consent, although the request for Legal Ethics Opinion states that the wife would not object to the lawyer's representation of the husband.] 1/5/1988
0457

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

58-Real Estate Lawyers

A lawyer had represented both the buyer and seller in a real estate transaction. The lawyer should not have later represented one against the other in a dispute over the deed because it was "reasonably likely" that the lawyer might be a witness (having prepared the deed) and because the lawyer had previously represented the defendant in the same transaction. 4/16/1982
1629

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

54-Insurance Defense Lawyers

A lawyer has worked as an associate in a medical malpractice defense firm and as a non-lawyer claims consultant for an insurance company (assigning malpractice cases to defense lawyers). The lawyer has now joined a plaintiffs firm. The lawyer may not pursue malpractice cases against any doctor on behalf of whom the lawyer had been involved as a lawyer in previous medical malpractice cases.The matters would be "substantially related" because "both representations involve the same doctor whose professional competence is at issue in both suits," and "possession of confidential information may be imputed" to the lawyer because of "his having earlier participated in the defense of the doctor in a previous malpractice action." If the lawyer was "involved" in the defense of any co-defendants in the earlier malpractice actions, the lawyer would likewise be precluded from representing plaintiffs adverse to them. [The Bar did not explain what would entail such "involvement."]The lawyer may represent plaintiffs adverse to a doctor represented by the lawyer's former firm if the lawyer "did not work on the doctor's defense and did not receive any confidential information from the doctor." Because the lawyer did not establish an attorney-client relationship with the insurance company's insureds while administering claims, the lawyer may be adverse to doctors "whose claim was managed and administered" by the lawyer while employed by the insurance company (the Bar indicated that "the doctors' claim information would not constitute a confidence or secret" under the Code) [Because lawyers are bound by the Code even if they are not acting as lawyers, and because such claims information might be highly sensitive, this seems like too narrow a view.] 2/7/1995
0294

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2-Adversity to Former Clients

54-Insurance Defense Lawyers

A lawyer hired by a plaintiff's insurer to file a grounds of defense and interrogatories on behalf of an uninsured defendant may not (after the case is settled) then file a subrogation action on behalf of the insurer against the defendant, even if the lawyer never interviewed the defendant. 2/23/1978
1225

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1-Adversity to Current Clients

2-Adversity to Former Clients

A lawyer is retained by a client to pursue a wrongful death case, but later finds that one of decedent's relatives is the proper plaintiff (as administrator) and that the client and the relative have adverse interests (among other things, the relative believes that the client is guilty of child abuse). Unless there is consent after full disclosure, the lawyer may not drop the client and represent the relative, because the relative's interests are adverse to the lawyer's first client. 4/26/1989
1105

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2-Adversity to Former Clients

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer may act as a consultant for the Department of Energy on policy matters despite having formerly represented clients before FERC on regulatory matters. There is no substantial relationship between the representation, and the present employment is not adverse to the former clients. 7/14/1988
0622

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2-Adversity to Former Clients

A lawyer may be adverse to a former client in a collection case because the matter is not "substantially related" to the former representation, and the lawyer did not learn any material confidential information during the earlier representation. 11/13/1984
1055

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

58-Real Estate Lawyers

A lawyer may continue to represent criminal clients (but must act cautiously) if the lawyer's secretary was a part-time magistrate in the same jurisdiction.3/16/1988
0304

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

71-Representing Corporations

A lawyer may defend a corporate client in a criminal matter although the lawyer had previously represented a corporate officer who is a forced witness (after receiving immunity) in the matter, as long as the witness' credibility will not be challenged and both the corporate client and officer-witness consent.11/2/1978
0441

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2-Adversity to Former Clients

A lawyer may not be adverse to a former client if the lawyer possesses material confidential information.12/7/1981
0657

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2-Adversity to Former Clients

A lawyer may not be adverse to a former client in any matter "substantially related" to the earlier representation. 2/5/1985
0621

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2-Adversity to Former Clients

A lawyer may not be adverse to a party the lawyer previously represented in a related matter, unless the former client consents. The entire law firm would be disqualified if the lawyer is disqualified. 5/1/1985
0232

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

A lawyer may not defend one party to a three-car accident when the party's interests are "potentially adverse" to another driver the lawyer had previously defended on criminal charges arising from the accident. [The Bar did not discuss the possibility of consent, or acknowledge the differing standards between civil negligence and criminal negligence.]1/2/1974
0438

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2-Adversity to Former Clients

71-Representing Corporations

A lawyer may not represent a corporation against an employee's estate when the lawyer's firm had previously represented the employee in the same matter. 11/17/1981
0707

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer may not represent a husband in a contested divorce matter (including child custody issues) when the lawyer previously represented the husband and wife in the adoption of their children. 7/11/1985
0792

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent a husband in a divorce case when the lawyer earlier represented the wife in an unrelated matter -- because the lawyer learned confidential information from the wife relating to the issues in the divorce. 5/1/1986
1516

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent a mother seeking custody of her child currently in the custody of another couple when the lawyer earlier represented the other couple in adopting another child of the same mother, because the matters are substantially related and it is presumed that the lawyer learned confidences from the couple that could now be used to their disadvantage. 5/28/1993
1568

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2-Adversity to Former Clients

A lawyer may not represent a plaintiff in a medical malpractice action against a dentist when the lawyer previously represented the dentist in a medical malpractice action ("both the current and former representations involve the same dentist whose professional competence is at issue in both malpractice suits") and prepared wills for the dentist and the dentist's spouse ("the possession of confidential information may be imputed to the attorney . . . based upon his having earlier represented the dentist in the malpractice action and upon his having drawn wills for the dentist and his wife"). 12/14/1993
0403

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent a wife when the lawyer had previously represented the husband in a dispute with the husband's first wife in a child support matter. 2/27/1981
0354

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent the husband in a contested divorce after representing both the husband and wife in preparing a property settlement and in an adoption matter. 1/7/1980
1191

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent the mother in a custody dispute after having previously represented the grandparents in a separate custody proceeding, because it was "extremely likely" that the mother's interests would be adverse to the grandparents (the representation would also be impermissible if the lawyer had obtained confidences from the grandparents that could now be used against them). 2/13/1989
0527

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

45-Law Firms - Miscellaneous

A lawyer may not represent the plaintiff in an accident case when a former partner in a now-dissolved firm investigated the accident, even if the lawyer may not have been privy to all of the facts uncovered by the investigation; the "partnership relationship imputes knowledge to the other partners". [Rule 1.9(b) analyzes a lawyer's actual knowledge rather than imputed knowledge when the lawyer moves to another firm.]9/13/1983
0888

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may not represent the wife in divorce action if the lawyer represented the husband in a contemplated divorce nine years earlier (even though the couple's financial and marital conditions have changed). 4/1/1987
0348

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer may not withhold information from a former client, even if the lawyer now represents an entity adverse to the former client. The lawyer may not represent either the former client or the current client if there is a dispute between them. 12/4/1979
1064

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2-Adversity to Former Clients

4-Witness-Advocate Rule

A lawyer may represent a client against whom the lawyer had previously filed an adverse claim involved in the same matter, as long as the client consented. The lawyer may continue the representation even if the lawyer must be a witness on an uncontested matter and the opposing party would not offer opposing evidence. 4/1/1988
0320

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

A lawyer may represent a creditor against a corporation's note's endorser even though the corporation is represented by the lawyer's former partner (who was also acting as the corporation's lawyer while the two lawyers were partners) as long as the lawyer had no knowledge of the corporation's affairs. 3/17/1978
1139

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

73-Family Law Lawyers

A lawyer may represent a husband in a divorce action although a partner (while in a different firm) represented the wife in an earlier divorce action against a previous husband, as long as further inquiry shows that there are no issues in the current divorce related to the previous divorce. 10/18/1988
0933

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2-Adversity to Former Clients

A lawyer may represent a plaintiff against one of the lawyer's former clients if the two matters are not substantially related and the lawyer did not gain any confidences from his former client that the lawyer could now use against the former client. 6/11/1987
0295

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may represent a spouse in a no-fault divorce and in negotiating a property settlement although the lawyer previously represented both husband and wife in their home purchase, as long as the lawyer had not acquired "any type of special knowledge" during the earlier representation. 2/17/1978
1180

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer may represent a wife in a divorce case even though the lawyer previously represented the husband in a land dispute. In the previous representation, the lawyer learned general financial information about the husband, including the value of the property and the husband's difficulty in paying attorneys' bills, but this information was of a general and a public nature and not a "confidence or secret." 12/9/1988
0445

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may represent a wife in a no fault divorce when a partner had previously represented the husband in an assault charge, as long as the wife will not allege physical abuse and the partner obtained no material confidential information. 1/18/1982
0538

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2-Adversity to Former Clients

73-Family Law Lawyers

A lawyer may represent a wife in custody and support matter although the lawyer formerly represented the husband in an unrelated matter, but must withdraw if the lawyer learns that confidences acquired from the husband in earlier representation would be relevant to the custody and support issue. 1/18/1984
0857

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2-Adversity to Former Clients

67-Lawyers Acting as Guardians Ad Litem"

A lawyer may represent someone accused of murdering his sister even though the lawyer had earlier acted as guardian ad litem for the defendant's mother (who was incompetent to testify). 10/31/1986
1444

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

A lawyer may represent someone adverse to a former client who did not pay the lawyer, as long as the "matters are not related and no secrets or confidences were obtained" by the lawyer. The lawyer must obtain the new client's consent before representing the client in the bankruptcy proceeding of the former client, because the lawyer (who is also a creditor of the bankrupt estate) has a personal interest adverse to the client. 1/6/1992
0569

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer may represent the husband in a divorce matter although the lawyer previously represented both the husband and wife in buying their home, unless in the earlier representation the lawyer learned confidences that could now be used against the wife. 4/20/1984
0822

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer represented a client in a divorce action, and learned substantial facts about the client's close friend and associate. After the divorce case was over, the friend's former wife asked the lawyer to represent her in a spousal support case. The lawyer may do so as long as the lawyer does not use confidential information gained from the client in the first representation. [The Bar did not indicate whether confidential information about the client's "close friend and associate" would be considered such a protected confidence.] 10/9/1986
1652

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

52-Fees in Family Law Cases

73-Family Law Lawyers

A lawyer represented a client in contempt proceedings in which the client seeks arrearages from her ex-husband under a property settlement agreement. The ex-husband later hires the same lawyer to represent him on unrelated matters. Both the original client and the ex-husband sign waivers of conflicts. Five years later, the ex-husband hires the lawyer to represent him on criminal and traffic charges, and he and the original client again sign waiver forms. However, the ex-husband now objects to the lawyer's continued representation of the original client in seeking the arrearages.Because the lawyer's representation of the ex-husband ended in 1992, the ex-husband is a former client of the lawyer. A lawyer may be adverse to a former client unless the matters are the same or "substantially related" or unless the lawyer gained confidential information that can now be used against the former client. In discussing the "substantially related" standard, the Bar used the following terms: "involve either the same facts . . . the same parties . . . or the same subject matter;" "essentially the same, arise from substantially the same facts, or are by-products of the same transaction;" "entail virtually a congruence of issues or a patently clear relationship in subject matter." The Bar concluded that the lawyer's representation of the ex-husband is not "substantially related" to the lawyer's representation of the original client.The Bar could not determine if the lawyer would have learned pertinent confidences from the ex-husband, because the "ex-husband's earnings, employment, ability to earn, assets, use of earnings, lifestyle and life" could be material to the original client's contempt proceedings.The Bar acknowledged that both the original client and ex-husband had consented on two specific occasions to the simultaneous representations, but held that "it is doubtful that [the lawyer's] consent from ex-husband, as well as Client, cured [his] conflict of interest in his simultaneous representation of both." The Bar indicated that "in any event, consent is not a contractual obligation and a client under certain circumstances may withdraw the consent." The Bar held that the lawyer had "an incurable conflict" and must withdraw from the representation of the original client. [The Bar overruled as "overbroad" its initial Opinion that client consent may be withdrawn at any time.]7/8/1996
1061

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

A lawyer represented a client in successfully obtaining a certificate of need for a facility. Two years later, the lawyer represented another client in filing for a certificate of need for the same type of facility nearby. At the same time, the first client (although not represented by the same lawyer) sought a certificate of need for a facility that would compete with the second client's proposed facility.The Bar held that the lawyer had no conflict, because (1) the lawyer's former and current representations are not substantially related; and (2) the lawyer claims not to have acquired any confidential information from the first client. The Bar added that the first client had not consented to the lawyer's representation, even though it knowingly acquiesced in it for over five months before objecting [this LEO was reaffirmed in LEO 1065.] 3/31/1988
0475

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

A lawyer represented a contractor and sub-contractor against a third party, but the two clients eventually quarreled. The lawyer must withdraw from representing the contractor and the subcontractor, but may continue to represent the contractor in the third party's counterclaim (because the lawyer would not be adverse to a former client or use its confidential information). 9/20/1982
1596

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer represented a corporation's president in 1989 and 1990, until the president resigned. New managers now run the corporation. Because the lawyer no longer represents the corporation or any of its officers, the lawyer may now represent an employee in a defamation lawsuit against the corporation -- because (1) there is no relationship between the defamation action and the lawyer's earlier representation; and (2) the lawyer did not acquire any relevant confidences. "Attorney's familiarity with the Corporation's operations or the personalities of its management, without more, is not a disqualifying conflict of interest." The lawyer might have to withdraw if a "finder of fact" determines that "either the matters were substantially related or that [the lawyer] did in fact receive secrets and confidences of President or [the] Corporation." 6/14/1994
1032

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

58-Real Estate Lawyers

73-Family Law Lawyers

A lawyer represented a couple in the purchase and refinance of their home. The lawyer may now represent the husband in a divorce action because the lawyer has only public knowledge about the home transaction. Although the wife claims that the lawyer will be a witness to the transaction, the lawyer may continue to represent the husband unless it is obvious that the lawyer will be called as a witness and the lawyer's testimony is or may be prejudicial to the husband. 2/2/1988
1194

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2-Adversity to Former Clients

A lawyer represented a franchisee in a dispute with the franchisor, and later (with the first client's consent) performed limited research work for the franchisor. Because that work has now ceased, the lawyer may again represent the franchisee in a dispute with the franchisor, because the research was not substantially related to the current dispute, and the lawyer did not obtain any information while representing the franchisor that could now be used against it. 2/16/1989
1279

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer represented a husband in a child support matter. The husband's ex-wife later wanted to hire the lawyer in an action against another man for child support. One of the children's paternity was disputed, so the action could have adversely affected the lawyer's former client (the husband). The lawyer may represent the wife if the husband consents after full disclosure, but the lawyer may not represent either the wife or the former client husband should a conflict later arise. 9/21/1989
1384

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2-Adversity to Former Clients

A lawyer represented a plaintiff against a real estate firm and its principal. The defendant claimed that one of the lawyer's partners had earlier handled a number of collection matters for the principal or the real estate company. However, in those earlier matters the real estate firm was simply the rental manager and not a named party, so there was no actual attorney-client relationship between the lawyer's partner and the real estate company or its principal (and thus no impediment to the lawyer's current representation). 9/13/1990
1196

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2-Adversity to Former Clients

A lawyer represented a real estate seller against a landlord. To facilitate diversity jurisdiction, the lawyer was paid by the seller to represent the buyer as a nominal plaintiff. The lawyer may now represent the seller in an action against the buyer to collect upon a defaulted note, if the note matter is not substantially related to the earlier lawsuit against the landlord, and the lawyer gained no material confidences from the buyer. 2/22/1989
1349

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer represented an ex-husband in child-support matters. After that representation, the lawyer was hired by another client (in a divorce action), who was living with the ex-husband's former wife. After that representation ended, the ex-husband again hired the lawyer for child-support matters. The Bar concluded that the representation of the ex-husband and the prior representation of the other client in the divorce matter were unrelated, but that the lawyer could represent the ex-husband only if the lawyer had not gained any confidences about the former wife while representing the other client then living with the former wife. 4/20/1990
1536

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

7-Family Conflicts

31-Protecting and Disclosing Confidences and Secrets

54-Insurance Defense Lawyers

71-Representing Corporations

A lawyer represented an insurance company's insureds and also represented the company in coverage issues. The Bar affirmed that the insured is the client of an outside lawyer selected by the carrier to represent the insured (relying on LEO 598). Once the lawyer leaves the firm, the lawyer may represent plaintiffs against other insureds (because "there was no attorney-client relationship" between the lawyer and the insurance company) as long as the new representations are not the same or substantially related to the specific matters on which the lawyer represented the company's insureds at the lawyer's old firm. [The Bar's conclusion that there was "no attorney-client relationship" between the lawyer and the insurance company seems inconsistent with its earlier statement that the lawyer handled "coverage issues" for the insurance company.] The lawyer's "familiarity with the general operation of [the insurance company] does not constitute a confidence or secret." Although the lawyer's spouse is an insurance company employee with access to claim files, the lawyer will not be disqualified as long as the lawyer has not acquired any confidential information from the spouse. 6/22/1993
0719

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

31-Protecting and Disclosing Confidences and Secrets

A lawyer represented four clients in automobile accident case, but one of the clients ends the representation and hires another lawyer. One of the remaining clients later tells the lawyer that the former client was not injured in the accident and is attempting to defraud the carrier (thus reducing the compensation available to the three remaining clients). If the lawyer continues to represent the three clients, the lawyer must advise all of them of this possible fraud because the fraud "would deplete the fund from which your continuing clients might recover" (because the lawyer learned about the possible fraud after the representation of the claimant ended, the lawyer has no duty to keep the information secret). 8/30/1985
1033

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2-Adversity to Former Clients

A lawyer represented the driver in a traffic accident on a drunk driving charge. After that case ends, the lawyer may represent a passenger (the driver's twin sister) against the driver as long as the driver consents. 2/5/1988
0346

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

A lawyer represented three defendants in an automobile accident case, and was successful in a demurrer. The plaintiff later sued one of the defendants, and the lawyer represented that defendant in settling the case. The lawyer may not now be adverse to that defendant on behalf of another defendant.12/4/1979
1623

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1-Adversity to Current Clients

2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

A lawyer representing a client in an eviction case discovers that the lawyer is representing another client (on an unrelated matter) who could be an adverse witness in the eviction matter. Because it is "not obvious" that the lawyer can adequately represent both clients (the lawyer must challenge the credibility of one client in representing the other client), the lawyer should withdraw from representing the eviction client. Once the lawyer drops the eviction client, the lawyer may continue to represent the other client in the unrelated matter. [The Bar's conclusion that consent would not cure this conflict might be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard] [There may be limits on a lawyer's ability to withdraw from a current representation to avoid a conflict created by multiple representations.]2/17/1995
0255

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2-Adversity to Former Clients

45-Law Firms - Miscellaneous

A lawyer representing a party in a partition suit may form a partnership with a lawyer who had previously represented the party's opponent in the partition suit, as long as the party consents after full disclosure. 12/13/1974
1377

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

54-Insurance Defense Lawyers

A lawyer representing a trucking company and driver in a wrongful death case learns that the driver has had a number of earlier tickets, and there is a dispute about whether the driver reported the tickets to the trucking company. The lawyer has withdrawn from representing the driver but wants to continue representing the company. The lawyer could do so only with the driver's consent, because the lawyer had earlier represented the driver. 9/13/1990
1022

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

A lawyer representing both a real estate buyer and seller may not later represent one against the other without consent. A lawyer representing a borrower may serve as a trustee under a deed of trust without obtaining the borrower's consent if the lawyer "has in no way advised or counseled" the borrower about the deed of trust or note and did not continue a relationship with the borrower after closing. In such circumstances, the lawyer may also foreclose without obtaining the borrower's consent. (Adopted 3/8/88; effective 5/24/88)5/24/1988
0986

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

36-Withdrawal from Representations

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A lawyer represents two criminal co-defendants. Just before trial, the Commonwealth's Attorney offers to plea bargain with one if that defendant will testify against the other. The lawyer drops the representation of the defendant receiving the offer. The lawyer later learns that the former client intends to testify against the continuing client and has also shared the lawyer's work product with the Commonwealth's Attorney. Although the continuing client insists that the lawyer continue the representation, the lawyer must withdraw. The Bar found nothing wrong with the Commonwealth's Attorney interviewing the former client (before the client has a new lawyer) and obtaining the former lawyer's work product from the former client. [This LEO was overruled by LEO 1702, which would prohibit the lawyer from obtaining or learning the substance of the work product.]10/27/1987
1684

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

68-Lawyers Acting as Mediators

A lawyer who acted as a mediator between an investor and a brokerage firm and who acquired confidential information about the brokerage firm's "internal rules and operations" may not later represent another investor in a lawsuit against the firm (even though the second investor's claims involve different securities and a different registered representative, the information the lawyer learned as a mediator was relevant to the second investor's case).The Code applies to the lawyer acting as a mediator. Although "mere familiarity with a corporation's workings or personality of its representatives is not enough" to disqualify the lawyer from being adverse to a former client, here "the mediator learned information about the internal rules and operations of the Firm having a bearing on the quality of the Firm's supervision of its agents." This means that the matters are "substantially related," and the lawyer/ mediator may not use such confidential information against a former client just as a lawyer could not use it against a former client the lawyer represented as an advocate. Although the brokerage firm may consent to the adversity, "the committee cautions attorneys from relying heavily on client consent because there are circumstances in which the consent may be withdrawn at a later time." [Rule 2.11 governs a lawyer's role as mediator.] [In LEO 1759, the Bar reaffirmed that a lawyer/mediator may not later represent a party to the mediation, even with client consent.]7/8/1996
1720

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2-Adversity to Former Clients

58-Real Estate Lawyers

61-Lawyers Acting as Executors

76-Trust and Estate Lawyers

A lawyer who acted as co-administrator of an estate did not represent the estate or the beneficiaries, but rather "was his own client for practical purposes." After withdrawing as administrator, the lawyer could not represent a beneficiary's executrix in litigation involving estate assets (unless the successor administrator consented) because the representation would be adverse to the estate and was "substantially related" to the lawyer's previous representation of himself or herself as administrator ("substantial relatedness between the matters in a former representation and a current representation is a fact-specific inquiry from case to case . . . in previous opinions, substantial relatedness depended upon whether the same parties, the same subject matter, or the same issues were present. The committee referred to cases to find substantial relatedness in terms of the matters or the issues being essentially the same, arising from substantially the same facts, being by-products of the same transaction, or entailing a virtual congruence of issues of patently clear relationship in subject matter.").On the other hand, the lawyer could represent the beneficiary's executrix in litigation over real estate which was never part of the probate estate and therefore not within the scope of the lawyer's role as administrator. There may also be fiduciary duties or statutes that would apply. 12/2/1998
0990

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2-Adversity to Former Clients

71-Representing Corporations

A lawyer who formerly represented a closely held corporation (on small collection matters unrelated to corporate structure, policy or the relationship between the shareholders) may represent one of the two 50% shareholders in litigation against the other shareholder. 11/4/1987
0998

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

A lawyer who formerly represented a criminal defendant cannot represent another defendant against whom the former client will be a witness, unless the first client consents. The interest of the two clients are adverse, and the lawyer formerly represented the witness on a substantially related matter.12/9/1987
1616

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2-Adversity to Former Clients

4-Witness-Advocate Rule

58-Real Estate Lawyers

A lawyer who formerly represented a party in performing a title examination may not now represent someone else in a boundary line dispute with the former client. Although the issue is now moot, the Bar confirms that "an attorney may continue representation of a party, even if called to testify by the opponent, until it is apparent that his testimony is or may be prejudicial to his client." 11/29/1994
0252

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2-Adversity to Former Clients

A lawyer who had previously represented a mother seeking to commit her son to a state training center could be adverse to both the mother and son in an unrelated automobile accident case. 11/22/1974
0218

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2-Adversity to Former Clients

A lawyer who had successfully defended an automobile driver in a manslaughter trial may now represent passengers in a personal injury action against the estate of the other driver, even though the estate has filed a third party action against the lawyer's former client acquitted of manslaughter (the passengers had consented to the representation after full disclosure, and their testimony in the manslaughter trial exonerated their driver). 9/1/1972
0648

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2-Adversity to Former Clients

75-Representing Estates and Executors

76-Trust and Estate Lawyers

A lawyer who previously represented an estate in a wrongful death case that has been settled may now represent another client against a third party who contributed to the decedent's death. Although the matters are substantially related, the estate and the prospective new client are not adverse to one another, and both have consented. 1/9/1985
1685

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2-Adversity to Former Clients

71-Representing Corporations

73-Family Law Lawyers

A lawyer who represented a corporation owned by three shareholders (approximately six years earlier) may now represent the corporation's sole remaining shareholder's wife in a divorce, as long as the lawyer "never represented the shareholder individually" and "no confidences or secrets were obtained from the shareholder or the corporation during [the lawyer's] representation of the corporation that would be pertinent to the divorce action" (the lawyer "did not perform any work necessitating an evaluation of the corporation or any review of financial records of the corporation"). 9/23/1996
0774

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer who represented a husband and wife in arranging for a second mortgage on their home may then represent the husband in preparing a property settlement agreement during a no-fault divorce, as long as the lawyer did not learn any relevant confidences during the earlier joint representation. 3/11/1986
0766

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

A lawyer who represented a husband and wife in child support litigation against the wife's former husband may now represent the husband in a divorce case (and a custody matter involving a different child) if the lawyer did not obtain confidential information in the course of the earlier joint representation. 1/17/1986
0744

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

5-Lawyers Changing Jobs

45-Law Firms - Miscellaneous

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

A lawyer who represented both the buyer and seller in a real estate transaction may not initiate foreclosure proceedings as trustee. A lawyer with whom the lawyer later merged must likewise withdraw from representing the buyer or seller in their dispute. 4/17/1986
0677

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

33-Office Sharing with Other Lawyers

73-Family Law Lawyers

A lawyer who represented both the husband and wife in drafting a property settlement and giving legal advice about it may not now represent the wife in a divorce action. Likewise, the husband may not be represented by another lawyer with whom the first lawyer shares office space and secretarial help. 4/2/1985
0758

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

A lawyer who represents a client against whom a judgment was obtained may not later seek to enforce the judgment (unless the former client consents). If the lawyer joins a new firm, the entire firm is disqualified. 1/13/1986
1351

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

58-Real Estate Lawyers

A lawyer who represents both the buyer and seller in a real estate transaction and who fails to find several judgments against the seller may not, without the seller's consent, purchase the judgments at a discount and then enforce them against the seller, because the lawyer may not be adverse to a former client in a debt collection (other than for legal fees) without the former client's consent. 5/24/1990
0803

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2-Adversity to Former Clients

71-Representing Corporations

A lawyer whose firm formed a corporation may represent one of the shareholder's wives against the shareholder, unless the lawyer learned material confidences in the earlier representation. 5/27/1986
0803

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2-Adversity to Former Clients

71-Representing Corporations

A lawyer whose firm formed a corporation may represent one of the shareholder's wives against the shareholder, unless the lawyer learned material confidences in the earlier representation. 5/27/1986
1762

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2-Adversity to Former Clients

6-Lawyers Paid by Third Party

18-Consent and Prospective Waivers

39-Miscellaneous

A mother who had an automobile accident in which her infant child was injured may not hire the same lawyer who represented her in a tort action against the other driver to also represent the child in the tort action, if there is a "non-frivolous claim" that could be filed against the mother in connection with the accident. Consent could cure this conflict, but the minor child cannot grant the consent, and the ability of the mother to grant the consent is a legal question beyond the Bar's purview. If there is no possible claim against the mother, then the mother can hire her lawyer to also represent the child, but must not direct or regulate the lawyer's professional judgment.2/4/2002
0562

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

51-Government Attorneys

A new part-time Commonwealth's Attorney may not prosecute defendants when the lawyer previously represented a co-defendant while in private practice. The assistant is likewise disqualified, since the assistant shares a private law practice with the part-time Commonwealth's Attorney. 4/10/1984
0446

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

51-Government Attorneys

A part-time Commonwealth's Attorney may not represent landowners in a condemnation proceeding when the lawyer had previously represented the interests of the State Highway Department against the landowners. 10/16/1981
1785

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1-Adversity to Current Clients

2-Adversity to Former Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests].11/14/2003
1561

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

76-Trust and Estate Lawyers

A wife is injured in a car accident in which her husband is killed. A lawyer represents her in suing the husband's estate for negligence, and the case is settled. One year later, the wife (now administratrix of her husband's estate) sues a third party, claiming that it negligently caused the accident. The lawyer's current representation of the wife against the third party does not violate the Code because the wife "is in a position to waive any conflict both as administratrix of the estate and on her own behalf." 12/14/1993
0770

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

73-Family Law Lawyers

Absent consent, a lawyer may not represent a wife in a divorce action when the lawyer had previously represented both the husband and wife with regard to marital property. 3/11/1986
1002

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

After both clients consented, a lawyer began representing a personal injury plaintiff and continued representing a hospital in an unrelated collection case against the plaintiff. The hospital was advised of the plaintiff's personal injury action at that time. When the personal injury plaintiff discharged the lawyer, the lawyer may not continue representing the hospital because the lawyer had learned of a possible source of payment (a personal injury judgment) through representation of the personal injury client. [The Bar did not acknowledge that the hospital was advised of the possible source of payment when the lawyer arranged consents.] 12/9/1987
1559

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

Although there is no attorney-client relationship between the lawyer for an infant and the infant's mother (acting as "next friend" in a personal injury action), the lawyer may not represent the infant in an action against his mother without the mother's consent, because "while discussing the infant's case, the mother may have divulged confidential or secret information which may present an advantage to [the lawyer's] representation of the infant and a disadvantage to the mother as a party defendant." 10/20/1993
1634

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

32-Lawyers Acting in Other Roles (Miscellaneous)

An accounting firm whose principal is a lawyer-accountant prepared joint returns for a client and the client's spouse. The couple has now separated. Because the Code applies when the lawyer is "functioning in the dual capacity as an attorney and an accountant," the former spouse is considered a former client, and the lawyer may not be adverse to the former spouse without consent. 2/22/1995
1613

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

An associate who worked on an antitrust case for three months before leaving a firm had obtained information from the client's co-defendants. Although there was no attorney-client relationship between the lawyer and the co-defendants, the information the associate gained from the co-defendants "is also construed to be protected as a secret of the client/defendant since it was gained in the professional relationship, was apparently intended by the client to remain confidential, and ... the interests of the co-defendants is parallel to the interest of the client/defendant." The Bar held that the associate would have to keep this information secret.In discussing whether the associate could now work for a governmental agency in an arguably related antitrust matter, the Bar noted that the Bar "would find not substantially related any anti-trust enforcement which did not involve either the same relevant facts necessary to prove a violation, the same parties (the same co-defendants), or the same subject matter (anti-trust)."The rule prohibiting adversity to a former client on the same or substantially related matters has no time limit. Because there was no attorney-client relationship between the associate and the co-defendants, the Bar held that the imputed disqualification rules possibly applicable to the government agency are "inapposite." [The Bar did not indicate whether the former associate could be involved in substantially related anti-trust enforcement matters with the former client's consent only, or whether the associate must also obtain the co-defendants' consents.] 1/13/1995
1399

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2-Adversity to Former Clients

5-Lawyers Changing Jobs

57-In-House Lawyers

71-Representing Corporations

An in-house lawyer performed some work for the corporation's subsidiary. After leaving that position, the lawyer was hired by a company adverse to the subsidiary. The lawyer may represent the company, because the matter was unrelated to the work the lawyer had performed for the subsidiary while employed by the parent, and the lawyer had learned no confidences or secrets. 2/15/1991
0401

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

As long as all clients consent, a lawyer may represent a plaintiff in a civil action although one of the lawyer's partners represented the same defendant in criminal charges arising from the same matter. If the defendant is not represented by counsel, fully informed consent may not be obtainable.1/19/1981
0301

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2-Adversity to Former Clients

As long as all clients consent, a lawyer may represent a third-party defendant in a class action although some members of the class had previously been represented by the lawyer in other matters.9/7/1978
0313

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2-Adversity to Former Clients

32-Lawyers Acting in Other Roles (Miscellaneous)

71-Representing Corporations

As long as both clients consent, a lawyer may represent a corporation in an action brought by another corporation the lawyer has previously represented and for whom a partner serves as registered agent. 4/4/1979
0688

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2-Adversity to Former Clients

48-Criminal Defense Lawyers

As long as both clients consent, a lawyer may represent a criminal defendant even though the lawyer previously represented another criminal defendant who has exculpatory evidence but refuses to provide it.5/22/1985
0635

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2-Adversity to Former Clients

As long as both clients consent, a lawyer may represent a plaintiff in an action against a former client (consent would be required only if the matters are the same or substantially related). 12/19/1984
0566

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2-Adversity to Former Clients

As long as both husband and wife consent, a lawyer may represent the husband in a traffic offense matter and later represent the wife in a personal injury action against the husband. 5/2/1984
0634

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

54-Insurance Defense Lawyers

As long as both the insurer and the former client-insured consent, a lawyer may represent the insurer in a subrogation claim even though the former client (the insured) has filed an ethics complaint against the lawyer on a related matter. 12/19/1984
0679

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

64-Lawyers Acting as Deed of Trust Trustees

As long as the client consents, and after receiving the advice to seek independent counsel, a lawyer representing the maker of a note may have his client execute an agreement by which the client "waives any objection" to the lawyer also acting as trustee and later proceeding against him under the terms of the deed of trust. [This LEO was vacated to the extent that it is inconsistent with LEO 824; see also LEO 815.] 4/5/1985
0661

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

73-Family Law Lawyers

As long as the former client (the ex-wife of the prospective client) consents, a lawyer may represent the father of a child in a custody proceeding against the ex-wife, even though the wife had consulted the lawyer nine years earlier about marital problems. 2/4/1985
0662

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2-Adversity to Former Clients

58-Real Estate Lawyers

As long as the former client consents, a law firm may represent a party against the former client in a title dispute, when the lawyer's firm performed a title examination twenty years earlier. 2/1/1985
1142

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2-Adversity to Former Clients

54-Insurance Defense Lawyers

As long as the former client consents, a lawyer for a non-suited defendant in an automobile accident may represent the non-suited defendant's insurance carrier. 10/26/1988
0659

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2-Adversity to Former Clients

60-Lawyers Acting as Trustees

As long as the former client consents, a lawyer may represent a creditor or proceed as trustee in a foreclosure proceeding against a debtor formerly represented by the lawyer. [This LEO was vacated by LEO 824.]2/1/1985
0637

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2-Adversity to Former Clients

As long as the mother consents, a lawyer may represent a minor against the minor's mother even though the lawyer represented the minor through the mother in a related matter. 12/19/1984
1666

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2-Adversity to Former Clients

9-Government Lawyer Conflicts

51-Government Attorneys

Because "a lawyer cannot be adverse to a former client in a substantially related matter, or if the lawyer learned relevant confidences during the earlier representation," a public defender who is elected a Commonwealth's Attorney must decide on a "case by case" basis whether the lawyer can prosecute former clients; disqualification would result in the vicarious disqualification of the entire Commonwealth's Attorney's office. 2/9/1996
0488

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2-Adversity to Former Clients

31-Protecting and Disclosing Confidences and Secrets

Even after withdrawing as counsel, a lawyer may not reveal information learned from the client that would exonerate another suspect and implicate the client. 9/3/1982
0256

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2-Adversity to Former Clients

4-Witness-Advocate Rule

57-In-House Lawyers

71-Representing Corporations

Former corporate counsel who resigned because of a dispute among the directors may not represent one of the directors in litigation arising from the dispute (both because of the conflict and because of the likelihood that the former corporate counsel "may be called as a witness"). 12/16/1974
ABA-415

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

57-In-House Lawyers

Former in-house lawyers may not take representations materially and directly adverse to their former employers (absent consent): (1) if they "personally represented" their former employer in the same or substantially related matter (some courts indicate that the matter must be "identical" or "essentially the same" as the previous matter); or (2) if they acquired material confidential information about their former employer ("general knowledge of the strategies, policies, or personnel of the former employer is not sufficient by itself" to disqualify the lawyer; a de minimus standard might apply if the in-house lawyer only addressed legal questions on the periphery of a matter); "general supervisory responsibility such as that exercised by the head of a legal department" ordinarily does not disqualify an in-house lawyer; sophisticated companies may grant prospective consents in these circumstances. 9/8/1999
0800

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1-Adversity to Current Clients

2-Adversity to Former Clients

64-Lawyers Acting as Deed of Trust Trustees

If both clients consent, a lawyer acting as a substitute trustee may oversee a foreclosure (using an independent lawyer) although the trustee's partner has previously represented "from time to time" and on unrelated matters adverse parties who might try to delay the foreclosure. 5/27/1986
1009

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

If the defendant consents, a lawyer may represent a criminal defendant even if a witness against the defendant is the lawyer's former client (on an unrelated matter) and the lawyer and the witness had a short conversation about the criminal matter (during which the lawyer did not gain any confidential information that could be used to his client's advantage or the witness's disadvantage).12/9/1987
1806

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2-Adversity to Former Clients

18-Consent and Prospective Waivers

In addressing a situation in which a lawyer who represented three clients 19 years ago in buying real estate now practices with a lawyer representing a client in litigation involving the real estate adverse to the other partner's three former clients (who are now acting as trustees), the Bar explains that: there is no "statue of limitations" for adversity to a former client, and the mere lapse of time or the lawyer's lack of memory about previous work does not relieve lawyers from determining if they may be adverse to former clients; the Bar's previous guidance under the old Code about the meaning of the "substantial relationship" test governing adversity to former clients applies under the new Rules (although the Bar has not adopted a specific test, it has pointed to such factors as the same facts, parties and subject matter, and quoted court decisions using terms such as "essentially the same," "arising from substantially the same facts," the byproducts of the same transaction," "entail virtually a congruence of issues or a patently clear relationship in subject matter"); the fact that the individual former clients now own the land as trustees is irrelevant, because they are the same people regardless of the role they are playing; the fact that the two lawyers were not practicing together 19 years ago does not matter, because any lawyer's individual disqualification caused by the current adversity would be imputed firm wide; the lawyers' "lack of familiarity with the file," or lack of memory about the old representation is irrelevant; the absence of any response from the trustees to the law firm's request for consent does not allow the firm to proceed, because a former client whose request is necessary must provide "actual" consent after full disclosure there is no "constructive consent" based on the client's silence; the lawyer's receipt of any "confidential information" during the earlier representation might itself cause an imputed disqualification of the firm, if the information "would be pertinent" in the current adversity to the former clients. 9/20/2004
1046

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2-Adversity to Former Clients

24-Representation of or Adversity to Witnesses

48-Criminal Defense Lawyers

51-Government Attorneys

The chief complaining witness in a criminal matter is represented by the former firm of the Commonwealth's Attorney. The Commonwealth's Attorney may continue to prosecute the defendant if the Commonwealth's Attorney was not involved in representing the witness and had not acquired any confidential information from the witness.3/1/1988
1767

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1-Adversity to Current Clients

2-Adversity to Former Clients

18-Consent and Prospective Waivers

48-Criminal Defense Lawyers

51-Government Attorneys

The Commonwealth's Attorney's Office may not prosecute defendants being represented by lawyers at a firm which is representing the Office in collection matters (consent is unavailable, because the client in the criminal cases is the Commonwealth, "which is unable to provide consent"). It would be unreasonable for defense attorneys to believe that their representation of criminal defendants would not be affected by the attorneys' representation of the Office (because the work provides a source of income to the defense attorney). Criminal defense lawyers would not be able to handle collection cases against their former clients without the former clients' consent (which seems "at best, unlikely"), yet the law does not allow the collection lawyer to subcontract cases involving the lawyer's former criminal clients. All of these disqualifications would be imputed to the entire law firm and the Office. The law establishing the collection procedures does not trump the ethics Rules.9/25/2002
ABA-394

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2-Adversity to Former Clients

37-Settlements

The prohibition on a lawyer's participating in offering or making an agreement limiting his right to practice applies to government lawyers too. 7/24/1995
1665

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2-Adversity to Former Clients

16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

Two indigent defendants were tried on capital murder charges in the same jurisdiction (but for unrelated crimes), and both were sentenced to death. The lawyer representing one of the defendants at trial was appointed to represent the other in habeas corpus proceedings, and vice versa. Thus, each lawyer would be asserting an "ineffective assistance of counsel" defense against the other, while defending similar charges. This created a conflict that could be cured by consent (although the "adequacy of disclosure to produce an informed consent imposes a substantial burden on counsel since an inadequate disclosure might itself become a basis for a claim of ineffective assistance of counsel"). If either of the lawyers withdrew, the other may continue because the conflict would disappear. 4/1/1996
1244

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

Two partners began to represent adverse parties in a personal injury action without realizing it. When the adversity came to light, one of the partners withdrew from representing the prospective defendant with the defendant's consent. The files of this brief representation were sealed and the lawyer did not discuss it with the lawyer who withdrew. As long as the plaintiff consents, the other partner may continue to represent the plaintiff as along as the lawyer had not obtained any confidential information from the partner who had to drop a client. 6/13/1989
0824

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2-Adversity to Former Clients

58-Real Estate Lawyers

64-Lawyers Acting as Deed of Trust Trustees

66-Lawyers Acting as "Scriveners"

Under certain circumstances, a lawyer may represent a borrower and also serve as trustee without obtaining the borrower's consent (as long as the lawyer has acted as a "scrivener" in the deal, has not given any advice to the borrower, and does not continue to represent the borrower after the closing). If the lawyer (or anyone in the firm) has had any legal role in preparing the terms of any of the documents, the lawyer may act as trustee only with consent [This LEO vacated inconsistent portions of LEO 359; LEO 524; LEO 659; LEO 679.][Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote].10/9/1986
1826

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2-Adversity to Former Clients

13-Marketing - Miscellaneous

50-Lawyer-Owned Businesses

68-Lawyers Acting as Mediators

Under Rule 2.10(e), a lawyer who acts as a mediator in a dispute may not later represent any party in that dispute (this conflict cannot be cured with consent). Although the conflict is imputed to all the lawyers in the law firm, another lawyer in the firm may represent a party in the dispute with consent. Although a "screen" (which is the proper term for "fire wall," "Chinese wall," etc.) cannot take the place of such consent, it frequently is used as an inducement for obtaining the consent. Lawyers serving together in a mediation firm do not face imputed disqualification, because the mediation firm is not considered a "firm" under Rule 1.10. Lawyers practicing in a law firm and also acting as independent contractors or directors of a mediation firm (and who refer mediation firm clients to their law firm) must consider whether the "personal interest" they have by virtue of participating in the mediation firm creates a conflict under Rule 1.7 -- requiring disclosure and consent. Any lawyer acting as a mediator must also comply with the Virginia statute requiring confidentiality of all mediation material. Lawyers owning an interest in a mediation firm must comply with the ancillary business rules. Lawyers referring cases between law firms and mediation firms must comply with Rule 7.3, which prohibits giving anything of value in return for a recommendation.3/28/2006
0672

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2-Adversity to Former Clients

Unless the former client consents, a lawyer may not be adverse to a former client in a substantially related matter, or if the lawyer learned relevant confidences during the earlier representation. 2/20/1985
0355

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2-Adversity to Former Clients

73-Family Law Lawyers

Unless the wife's current husband consents, a lawyer may not represent the wife's ex-husband in a custody proceeding after having represented the current husband in a marital matter related to the child custody issue. 2/6/1980
1456

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2-Adversity to Former Clients

Without consent, a lawyer may not be adverse to a former client if: (1) the matters are "substantially related;" or (2) the lawyer received relevant secrets or confidences from the former client. (It appears that the lawyer withdrew from one representation in this hypothetical, which allowed the lawyer to continue representing another client with adverse interests). 6/9/1992

Copyright 2000, Thomas E. Spahn