FORMER CLIENT CONFLICTS

 

You have a client or prospective client and have recently learned the identity of a person who will be adverse to your side.  How do you determine whether you have a conflict under Rule 4-1.9?

 

1. Have you had any kind of non-adversarial relationship with this person, as an attorney, in the past?

 

2.  If yes, was that person a client or would that person have reasonably believed that he or she had an attorney-client relationship with you?

 

3.  If no, you do not have a conflict.  If yes, proceed to the next step.

 

4.  If yes, was that relationship in a matter related to or very similar to the current matter?

 

5.  If yes, you probably have a conflict under 1.9(a).  However, “very similar” may require more in depth analysis.  If no, proceed to next step.

 

6.  Did you obtain any information in the course of that previous relationship that could be used to that person’s detriment in the current matter?

            A. Review your recollection; and

            B.  If possible, review the file.

 

7.  If you do not believe you obtained that kind of information, it is a good idea to advise your current client of the possibility that the other side will allege a conflict and that defending the allegation might require time and money.  It is also generally a good idea to raise the issue with opposing counsel early on and inform opposing counsel that you don’t see a conflict.

 

8.  If you did obtain that kind of information, you have a conflict, unless the only information you obtained is now “generally known.”