February 15, 1994
A lawyer who formerly represented a company with regard to defense of an employment discrimination matter must, absent consent of the former client, decline representation of a different former employee of that company with regard to an employment discrimination matter if the factual or legal issues of the two representations overlap or if there is a likelihood that confidential information obtained in the former representation will have relevance to the subsequent representation. In the case of doubt, and absent consent, a lawyer should decline the representation.
References: MRPC 1.9(a) and (c); RI-46, RI-95; General Electric Co. v. Valeron, Inc., 608 F2d 265 (CA 6, 1979), cert den 445 US 930 (1979).
A lawyer represented a small company with regard to claims of a former employee, inter alia, that the employee was discriminated against in the terms and conditions of employment based on religion and marital status. That matter has been settled. The lawyer seeks to represent a different former employee of that company with regard to a claim of sex discrimination.
MRPC 1.9(a) prohibits representation of a client in a "same or substantially related matter" when the client's interests are "materially adverse" to the former client unless the former client consents after consultation.
Without question, the interests of the former and prospective client are "materially adverse."
The second test, whether the proposed and prior representations are substantially related, is in some respects, a fact question in this case. A subsequent representation is substantially related to a former representation 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. RI-46, RI-95. The claims in the prior representation relate to certain discrete allegations that may be unrelated to this new matter, e.g., unauthorized credit checks. The nexus between the prior and present matter is allegations of employment discrimination. Claims of disparate treatment based on any of the protected classes of employees must be tested against the company's employment policy and actions in gross.
The same federal and state laws form a basis of the prior and proposed representation, but the Comment to MRPC 1.9 makes it clear that:
"[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client . . . . The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question."
The fact that both representations involved discrimination claims does not in itself determine whether the matters are "substantially related." For example, if the legal sufficiency of the company policy was at issue in both representations, they would be deemed substantially related. If, however, the legal issue in the former representation was whether the acts constituted discrimination, and the issue in the prospective representation is whether the company followed its own policy, the matters are not substantially related. As recommended in RI-95, the inquirer is urged to carefully analyze the prospective representation in determining whether to accept the new representation. The Subcommittee is not a fact-finding body and lacks the investigative authority necessary to determine the exact nature of the former representations and their relationship, if any, to the prospective representations. In the case of doubt, the representation should be declined.
Finally, there is a likelihood that confidential information obtained in the prior representation will be relevant to the proposed claim. To the extent that the inquirer learned in the prior representation information regarding the company's attitude toward settling discrimination cases, background concerning the development of the challenged corporate policy, etc., which is beneficial to the prospective client, MRPC 1.9(c) would prohibit its use. In case of doubt whether confidential information relating to the former representation could be used to the disadvantage of the former client, a lawyer should decline representation. RI-46; General Electric Co. v. Valeron, Inc., 608 F2d 265 (CA 6, 1979), cert den 445 US 930 (1979).