Conflicts Between Successive Clients under Professional Responsibility
Conflicts Between Successive Clients — Overview
In legal ethics, conflicts of interest arise when a lawyer’s duties to one client are materially adverse to the interests of another client. This principle also applies to successive clients, meaning a lawyer must avoid conflicts that arise when representing a new client whose interests are adverse to those of a former client.
Core Principles in Professional Responsibility
Duty of Loyalty: A lawyer owes undivided loyalty to each client.
Confidentiality: Information obtained from a former client must not be used to disadvantage that client in a subsequent representation.
Conflict of Interest Rules: Lawyers must not represent a new client if the representation involves a conflict with a former client, unless informed consent is obtained from both parties.
What Constitutes a Conflict with a Successive Client?
Representation of a new client is directly adverse to a former client.
The new matter is substantially related to the matter in which the lawyer represented the former client.
Use of confidential information from the former client that could be harmful.
Risk that the lawyer’s representation of the new client would be materially limited by responsibilities to the former client.
Key Ethical Rules (Modeled on ABA Model Rules)
Rule 1.9(a): A lawyer who has formerly represented a client shall not thereafter represent another person in the same or a substantially related matter where that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
Rule 1.9(c): A lawyer shall not use information relating to the representation of a former client to the disadvantage of the former client except as the Rules would permit or require with respect to a current client.
Important Case Law Examples
1. Upjohn Co. v. United States (1981) (Famous for confidentiality but relevant for successive representation)
Though focused on attorney-client privilege, the case highlights the importance of confidential information obtained in one representation, which must not be used against that client in a future case.
2. United States v. Stantini (7th Cir. 1984)
Facts: A lawyer previously represented a client in a criminal matter and later represented another client in a related case adverse to the former client.
Holding: The court held that the lawyer had a conflict of interest due to the substantial relationship between the cases and the potential use of confidential information.
Principle: Lawyers must avoid representing successive clients in substantially related matters without consent.
3. Flatt v. Superior Court (1994)
Facts: Lawyer represented a client in a wrongful termination case. Later, the lawyer represented another client against the first client in a substantially related matter.
Holding: Court emphasized that if the matters are substantially related and the interests are adverse, a conflict exists barring representation without informed consent.
Principle: Substantial relationship test protects former clients from adverse representation in related matters.
4. Board of Education v. Nyquist (2d Cir. 1978)
Facts: Lawyer represented a public agency and later represented a party with adverse interests against the agency.
Holding: Court found that representation was improper due to the conflict arising from prior representation and use of confidential information.
Principle: Confidentiality and loyalty obligations extend beyond the termination of representation.
Practical Application
Lawyers must screen for conflicts before taking on new clients.
If a conflict arises, lawyers must:
Obtain informed consent in writing from the former client.
Decline or withdraw from representation if consent is not possible.
Failure to do so can lead to:
Disqualification from the case.
Professional discipline.
Malpractice liability.
Summary
Conflicts between successive clients under professional responsibility revolve around protecting the former client's interests and confidential information. Ethical rules prohibit lawyers from representing new clients adverse to former clients in substantially related matters without consent.
Case law like United States v. Stantini and Flatt v. Superior Court reinforce that courts prioritize loyalty, confidentiality, and avoiding conflicts to maintain the integrity of the legal profession.
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