Summary: 7) Successive Conflicts, Laterals, And Government Service

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• 1 7) Successive Conflicts, Laterals, and Government Service

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• Can all former client conflicts be waived?

  Yes

• 1.9(b) - Rule on Laterals

  There is a conflict if the lateral acquired (coming from a firm that represented C) information at his prior firm that is material to the current matter. Can be cured with consent.

• 1.9(c) - use of information obtained from a former C

  L cannot use information adversely to a former C unless it is generally known.

• Where an L previously represented a project, can he oppose it as an activist later?

  Arguments against: (1) L's antipathy toward the project predates the representation ending. Thus, he had a conflict during the representation. (2) Probably, L knew information after the representation that made it easier for him to be an activist or improved his activism. Thus, misuse of confidential information.

• 1.9(a) - Former Client Conflicts: 5 step Analysis

  1. Has the L formerly represented a client who might complain about the conflict?
  2. Identify the Matter: What is the nature of the matter for which the L formerly provided representation?
  3. Is the matter the same or substantially related to the present matter
  4. Are the interests of the present C and former C materially adverse 
  5. Did the former C provide informed consent?

• 1.9(a) Element 1: Represented a Client

  Look out for implied/quasi AC-Rs. Kerr-McGee, Etc

• 1.9(a). Element 2: Identify the Matter

  A "matter" is not just a lawsuit. Can include a transaction, deal, or an issue on which the C requires counseling and legal advice. A "matter"does not include a legal position taken behalf on a C, so if a L argues in case 1 that a state statute is constitutional on behalf of C1, he is not precluded from arguing, on behalf of C2, that the statute is unconstitutional. Put this may create a "positional" conflict.

• 1.9(a). Element 3: The Substantial Relationship Test: (1) Confidentiality Analysis

  • The trend is toward following this approach. Analyze the relatedness of two matters in terms of the nature of confidential client information that the L may have learned in the course of representing the former client. See 1.9, CMT 

• 1.9(a). Element 3: The Substantial Relationship Test: (1) Confidentiality Analysis - 1.9 COMMENT 3

  Two matters are substantially related if there is a "substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance C2's position in the subsequent matter." However, if the new C [C2] had independent access to the information in question, it would not be confidential information of the former client, and the 2 matters would therefore not be considered substantially related.

• 1.9(a). Element 3: The Substantial Relationship Test: (1) Confidential Analysis APPLIED

  • The former C does not have to show the confidential information that the L actually received. Courts look to the nature of the former representation and analyze the sort of information to which a L probably would have had access in the past. If that information would be useful in the present representation, the two matters are substantially related. 
  • The test is whether resolution of the legal issues in one matter would involve facts that would be relevant in the other matter. Whether there would be some overlap in the factual information relevant to both.