Wednesday, July 11, 2007

Duty Of Loyalty To Former Client

Two defendants, who resided together as boyfriend and girlfriend, were convicted of offenses involving the death of the woman's five-month-old child. An attorney who had been initially appointed to represent both was permitted to represent only the boyfriend at trial after he had been relieved of the girlfriend's case. The attorney then cross-examined his former client at the trial: "This conflict culminated in the ghastly unrestrained process of [the former client's] cross-examination by [her former lawyer] at trial."

The Court of Appeal of Louisiana, Second Circuit, reversed  both convictions. The court held that such adversity to a former client in the same matter involves an actual conflict. Thus, "it need not be shown that the divided loyalties actually prejudiced the defendant in the conduct of the trial." The boyfriend's conviction was reversed because he "was never advised of his right to obtain conflict-free counsel." (Mike Frisch)

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We have been having a discussion on the APRL listserv about whether a lawyer has a duty of "loyalty" to former clients -- apart, that is, from the duty of confidentiality and its role in applying the substantial relationship test. As of this afternoon, the only concept identified that did not rest on confidentiality was that of the lawyer attacking her own work for a former client.

The Louisiana case was pretty clearly a standard substantial relationship situation. The lawyer cross-examined the mother, whom he earlier had actually represented in that very case.

Posted by: Bill Freivogel | Jul 12, 2007 2:58:37 PM

Down the bottom of the world, here in Victoria, Australia, we live under the guidance of a decision in which one of the State's top judges gave a sophisticated analysis of what he identified as a duty of loyalty. It says just this: thou shalt not pick up the cudgels against a former client in the same or a similar matter as the one in which you used to act for them. It does not mean you can never act against a former client. But it does mean you cannot act against your former client even in some situations where there is no confidential information acquired by you by virtue of the previous relationship -- even of the species which it seems you guys call 'substantial relationship' knowledge (but which we call 'the getting to know you factors'). Here's a link to Justice Brooking's decision in the matter of Spincode Pty Ltd v. Look Software Pty Ltd [ 2001] VSCA 248 http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/vic/VSCA/2001/248.rtf

Posted by: The Australia Professional Liability Blog | Jul 15, 2007 6:27:02 AM

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