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I. Former-Client Conflicts and Migratory Lawyers A. Side Switching Former-Client Conflicts a. Termination of the Attorney-Client Relationship i. For analysis for side switching conflicts, it matters a great deal whether there is an ongoing attorney client relationship or the relationship is entirely in the past 1. The conflict rules are stricter on lawyers who intend to represent a new client against the interests of an existing client than they are on a lawyer who wishes to take on a new client against the interests of a former client. a. A lawyer cannot simultaneously represent two clients whose interests are directly adverse, but a lawyer can take a new matter that is materially adverse to a former clients interests, as long as the two matters are not the same or substantially related ii. An Attorney-Client relationship is ongoing if 1. The client subjectively believes that the lawyer is continuing to represent her 2. That belief is reasonable in the circumstances B. Analysis of Side-Switching Former-Client Conflict Problems a. Model Rule 1.9(a) i. 1) Has the lawyer formerly represented a client who might complain about the conflict ii. 2) What is the nature of the matter for which the lawyer formerly provided representation iii. 3) Is that matter the same or substantially related to the present matter iv. 4) Are the interests of the present and former client materially adverse v. 5) Did the former client provide informed consent b. Representing a Client i. Important to identify existing attorney-client relationships 1. A substantial risk for the lawyer is acquiring professional duties (of keeping confidences and refraining from representing conflicting interest) toward parties the lawyer would prefer not to represent ii. Model Rule 1.8 1. A lawyer is prohibited from representing new clients with interests adverse to those of a prospective client if the lawyer learned confidential information in the course of the interview with a prospective client c. Identify the Matter i. A matter is not just a lawsuit, but can include a deal, transaction or an issue on which the client requires counseling and legal advise d. The Substantial Relationship Test i. Three different standards have been applied 1. The prior representation is akin to the present action in a way reasonable persons would understand as important to the issues involved In Re American Airlines 2. The lawyer could have obtained confidential information in the first representation that would be relevant in the second Analytica v. NPD Research 3. The relationship between the matters is patently clear and the issues are identical or essentially the same Government of India v. Cook Indus ii. Restatement Test Responds to two distinct interests of clients that would be threatened if lawyers were permitted to represent new clients against old ones 1. Confidentiality of Information 1

a. Comment to MR 1.9 says that the 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 the clients position in the subsequent matter i. If the new client had access to the information in question, it would not be confidential information of the former client, and the two matters would therefore not be considered substantially related b. A former client does not have to show the confidential information that the lawyer actually received. Courts look to the nature of the former representation and the current matter and analyze what sort of information to which a lawyer probably would have had access to in the past i. If that information would be useful in the present representation, the two matters are substantially related c. For matters to be substantially related, it is not necessary that the underlying legal issue be substantially related. i. The test is whether resolution of the legal issue in one matter would involve facts that would be relevant in the other matter. 2. Loyalty a. Loyalty rationale recognizes that a client would feel wronged, betrayed or sold out if her previous lawyer turned around and represented one of the former clients adversaries. b. Two particular situations in which courts will disqualify a lawyer from representing a new client on the basis of loyalty i. 1) Where the lawyer literally switches sides in the middle of a case 1. EX: A lawyer at a law firm representing plaintiff suddenly takes a job offer at the firm representing the defendant ii. 2) The lawyer attacks work she previously had performed for a client 1. EX: Lawyer represents A in negotiating a contract with B and subsequently seeks to represent B and argue that the contract is invalid iii. Restatement Test iv. Two matters are substantially related if 1. The current matter involves the work the lawyer performed for the former client; or 2. There is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known e. Material Adversity i. Refers to the incentives a lawyer has in her representation of a client ii. The position of a new client is materially adverse to that of a former client if the lawyer would be limited in performing her professional obligations for either one iii. Consent 1. Unlike the Current-Client Conflicts Rule, (MR 1.7), MR 1.9 contains no category of non-consentable conflicts 2


a. All former-client conflicts are consentable provided the lawyer provides full disclosure to the former client iv. Prospective Client Rule 1. MR 1.18(a) A person who consults a lawyer about the possibility of hiring the lawyer is a prospective client a. At the moment the prospective client consults with a lawyer, the lawyer acquires an obligation to keep confidential any information learned in the course of that consultation (MR 1.18(b)) b. If the prospective client decides not to retain the lawyer, that lawyer is personally disqualified from representing a new client whose interests are materially adverse to those of the prospective client, in the same or a substantially related matter C. Migratory Lawyers a. Analysis of Migratory Lawyer Problems i. 1) While working at the previous firm, did the moving lawyer represent a client whose interests are adverse to those of a client of the new firm ii. 2) Are the two matters in question the same or substantially related iii. 3) Is the moving lawyers Taint imputed to other lawyers in the new firm, so that the entire firm is disqualified if the moving lawyer would be personally disqualified b. Definition of Representation i. Most courts define representation in terms of access to confidential information 1. If Bradley gained confidential information from Nemours that could be used by Biggs to the detriment of Nemours, then Bradley will be considered to have represented Nemours. ii. In all jurisdictions there is an irrebuttable presumption that lawyers within a firm have shared confidential client information among themselves, if the question is whether one lawyer within the firm can take on a new client whose interests are adverse to another firm client. iii. The modern rule is that it is a rebuttable presumption that Bradley gained confidential client information Berg. If Bradley can make a specific showing that he learned nothing from Berg, he may be able to move to Biggs without precipitating that firms disqualification from representing Pierce. c. Substantial Relationship i. Same test as the side-switching former client conflicts scenario ii. The moving lawyer would be personally disqualified from representing a client of the new firm in the same or substantially related matter as one he had worked on at the old firm. d. Imputed Conflicts and Screening i. The effect of a broad imputation rule would be essentially to freeze lateral hiring of experienced lawyers, particularly in smaller cities or in highly specialized sub communities of lawyers ii. Courts will presume that a lawyer in Bradleys position will share confidential information regarding Nemours with other lawyers at Biggs 1. This presumption however can be rebutted by showing that Biggs has put an effective screening mechanism into place, in a timely matter e. Elements of an Effective Screen i. 1) Strict Segregation of paper and electronic files ii. 2) Instruction to lawyers in the firm not to communicate with the attorney about the ongoing case. 3

1. Also, instructions to the new attorney not to reveal confidential information he learned working for the old firm to lawyers at the new firm iii. 3) No sharing of fees attributable to the personally disqualified lawyer. 1. Rationale To prevent the new firm from setting up some kind of system where the new lawyer would get a financial reward for leaking the old clients secrets iv. 4) Notice to the old client of the lateral move to the new law firm so that the client can keep an eye on the progress of the case to see whether the hiring firm actually is complying with the screening obligation 1. If the old client/firm is worried, it can file a motion to disqualify. v. 5) Timing, the screening mechanism must be in place before there is any possibility that the new attorney could leak the secrets to the lawyers at the new firm.