Home / Summaries / 7) Successive Conflicts, Laterals, and Government Service / representation-former-adverse

Successive Conflicts, Laterals, and Government Service

10 important questions on Successive Conflicts, Laterals, and Government Service

DEFINE - 1.9(a). Element 3: The Substantial Relationship Test: (1) Loyalty Analysis

Despite the overall trend toward the confidentiality analysis, there is still  lingering effect of the loyalty rationale for prohibiting serial representation of Cs with opposing interests. The basic idea is that the former C would fee betrayed if his previous L turned around and represented one of his adversaries. But this may be used to create a broad zone of prohibition on future representation by a L.. Thus, when looking to the loyalty interest to define the scope of the prohibition on representing new clients, it is important to focus on the reasonable expectations of loyalty.

1.9(a). Element 4: Material Adversity

"material adversity" refers to the incentives a L has in his representation of a client. The position of C2 is materially adverse to C1 [former C] if the L would be limited in performing his professional obligations to either one (material adversity depends on whether the subsequent representation threatens "legal, financial, or other identifiable determine" to the former C

Under 1.9(a), when would the interests of the former C [C1] and present C [C2] be materially adverse?

If the L for C2 would be unable to use facts learned in the course of representing C1, L could be faced with the Hobson's choice of either violating his duties of competent representation [1.1] and communication [1.4] to C2, or his PDC [1.6] to C2.
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1.9(a). Element 5: Consent. Rule for the Former C's Consent

Under 1.9, all former-Cs conflicts are constable, prohibited the L provides full disclosure to the former C, which is necessary to obtain informed consent.

1.9(a). Element 5: Consent. When can a current C conflict be non-consentable.

Where there is a significant risk that L's past representation of the former C will materially limit his representation of the current C [1.7(a)(2)] AND no reasonable L would believe that it is possible to provide competent and diligent representation to C2 under the circumstances [1.7(b)(1)].

Playbook Problem - Analysis

Whether L will be prohibited from representing a new C in a matter that is materially adverse to a former C turns on the "substantial relationship" test.  Only when the former client information will be directly in issue or of unusual value in the subsequent matter will it be independently relevant in assessing a substantial relationship. These cases tend tot urn on how client-specific or idiosyncratic the information is.

Playbook Problems: Where is there a strong argument for disqualification

Where L has learned truly proprietary, insider, or secret information that would not be common knowledge for an L experienced in the area, the case for disqualification--that is, for finding the matters substantially related--grows stronger.

Hot Potato Rule - Define

Courts have consistently refused to allow firms to drop Cs solely for the purpose of taking on new matters adverse to the now-former C. Without the hot potato rule, the current-C conflicts rule could be circumvented by permitting the L to fire a C and then take on representation adverse to the former C, as long as the two matters are not substantially related.

Hot Potato Rule - Summary

Withdrawal is effective to render a representation "former" for the purposes of conflicts if it occurs at a point that the C and L had contemplated as the end of the representation. .  . If a L is approached by a prospective C seeking representation in a matter adverse to an existing C, the present-client conflict may not be transformed into a former-C conflict by the L's withdrawal from the representation of the existing C. A premature withdrawal violates the L's obligation of loyalty to the existing C.

General Rule on Withdrawal due to Current CoI

Generally, if a conflict arises after a L has begun work on 2 Cs' matters, the L can withdraw from only one of the matters and continue representing the other C, as long as the matters are not substantially related. Note that the hot potato rule is stricter than the usual rule governing post-representation conflicts, which would allow the firm to stay in on behalf of one of the Cs.

The question on the page originate from the summary of the following study material:

7) Successive Conflicts, Laterals, and Government Service

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