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. 
 Back to main menu

  Print This Leo
LEO NumTopicsSummary

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.

Copyright 2000, Thomas E. Spahn