Monday, March 3, 2008

Avoiding A Substantial Relationship Issue

The District of Columbia Bar's Legal Ethics Committee has recently issued an opinion that concludes that a lawyer can avoid violation of Rule 1.9's proscription against being adverse to a former client in a "substantially related" matter by limiting the scope of the new representation. From the opinion summary:

"Subject to certain conditions, a lawyer may limit the scope of the new representation such that factual information normally obtained in the prior matter would be legally irrelevant to the advancement of the current client’s position in the new matter. Specifically, by agreeing only to represent a client as to a discrete legal issue or with respect to a discrete stage in the litigation, a lawyer may be able to limit the scope of the representation such that the new matter is not substantially related to the prior matter. Restrictions on the scope of the representation that effectively ensure that there is no substantial risk that confidential factual information as would normally have been obtained in the prior representation would be useful or relevant to advance the client’s position in the new matter may, under certain circumstances, be sufficient to avoid a conflict of interest." (Mike Frisch)

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But then how is that not a concurrent COI as to the new client? New client has issues and procedures that an unconflicted counsel would raise but will not be raised by this atty due to preserving the interests of the old client. Even if the new client is willing to waive, I still worry that the lawyer is not providing adequate and competent representation.

Posted by: Alan Childress | Mar 3, 2008 8:06:58 AM

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