June 18, 1990
A lawyer may represent a client in litigation against a former client only when: (a) the matter at issue, if materially adverse to the former client, is not substantially related to the matter in which the lawyer represented the former client; and (b) the lawyer will not be able to use confidences or secrets obtained in the former representation to the disadvantage of the former client.
If the fact-finder determines there is a sound factual and good faith basis to believe that confidences and secrets exist and might be used to the disadvantage of the former client, the lawyer is disqualified from the representation.
References: MRPC 1.7(a), 1.9, 1.10(a); R-4; RI-46.
A lawyer represents the plaintiff in a wrongful death suit resulting from the death of plaintiff's child, who was killed while a passenger with defendant, the former spouse of plaintiff. The lawyer's partners had represented the defendant in the prior divorce proceeding. The defendant initially consented to the lawyer's representation of the plaintiff, but later attempted to revoke the consent.
Opposing counsel in the wrongful death action has filed a motion to disqualify the lawyer based upon MRPC 1.9. Certain facts are in dispute, i.e., whether defendant was a client of the lawyer's firm when consent to the lawyer's representation of the plaintiff was obtained or whether that representation had ended, and whether the lawyer's firm gave the defendant any advice about the wrongful death action.
MRPC 1.9 states:
"A lawyer who has formerly represented a client in a matter shall not thereafter:
"(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
"(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known."
If any member of the lawyer's firm is disqualified under MRPC 1.7 or 1.9, the disqualification is imputed to all members of the firm, MRPC 1.10(a).
In RI-46 the Committee discussed whether a lawyer's prior representation of a client in foreclosure proceedings prohibited the lawyer's representation of the former client's spouse in a subsequent divorce. The Committee found that a subsequent representation is "substantially related" if (a) the subject matter of the representation is the same, (b) the factual or legal issues overlap, or (c) there is a likelihood that confidential information obtained in the former representation will have relevance to the subsequent representation. Further, "in the case of doubt about whether a matter is substantially related, or whether confidential information relating to the former representation could be used to the disadvantage of the former client, a lawyer should decline the representation."
In this inquiry the interests of the firm's two clients are materially adverse in the wrongful death action. The subject matter of the wrongful death action is not the same as the subject matter of any of the issues of the divorce proceeding. Further, the motion for disqualification does not allege the overlap of any factual or legal issues, nor does it allege the relevance of confidences or secrets obtained in the prior representation.
It is not clear whether the lawyer has used or has available for use any confidences or secrets not otherwise generally available that would be disadvantageous to defendant. If so, then the lawyer is disqualified; if not, the lawyer would not be disqualified. A partner is presumed to be privy to the confidences and secrets of the firm's clients, but the presumption is rebuttable. See R-4. Although the lawyer may attempt to demonstrate that such confidences and secrets do not exist, in cases of doubt, a lawyer should be prohibited from undertaking the representation. Unless the Court finds such overlap or relevance of confidences or secrets, disqualification would not be warranted under MRPC 1.9.
If the representation of plaintiff was undertaken before final entry of the judgment of divorce, MRPC 1.7 applies. MRPC 1.7(a) states:
"A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
"(2) each client consents after consultation."
Whereas under MRPC 1.9 the former client's consent was only necessary when materially adverse matters are the same or substantially related, a current client's consent is always required when the matters are directly adverse, as in this wrongful death action. The question of whether a waiver of conflicts was knowingly given, and whether it may be rescinded without disqualifying the lawyer who relied upon the waiver, are questions for which the Committee has insufficient facts.
Therefore the lawyer may not represent the plaintiff in the wrongful death action against a former client if the Court finds that the two representations overlap in facts or law, or if the Court finds that confidences or secrets of the prior representation are relevant in the subsequent representation. Nor may the lawyer agree to undertake representation of the plaintiff in the wrongful death action before the judgment of divorce is final without the knowing consent of each client.