July 30, 2010
Client Interests Live On For Conflicts Purposes
In a case of first impression, the Oregon Supreme Court held that an attorney violated the former client conflict-of-interest rules notwithstanding the death of the client. The attorney had represented a client in a loan transaction. After her death, he represented the lender in claims against the client's estate. The court noted a dearth of authority on the subject and reasoned
The wording of those [former client conflicts] rules focuses on the interests of the former client. That focus supports the Bar's position that, because a client's interests can and often do survive a client's death, the rules' protections extend to a former client even after his or her death. But it is not just any interests of the former client that must survive. In the context of the disciplinary rule, it is the former client's interests that pertain to the matter in which the lawyer previously represented the former client. It is those interests that must survive the former client's death.
The rules also require that the former client's interests "are" in actual or likely conflict with (DR 5-105(C)) or materially adverse to (RPC 1.9(a)) the current client's interests. Accordingly, the attorney must assess whether the pertinent interests of the deceased former client will be adverse to the interests of the subsequent client during the subsequent representation. That is, the proper analysis is not whether the interests of the former and current client were adverse during the former client's lifetime, but whether the surviving interests of the former client are adverse to the current client during the subsequent representation.
In sum, we conclude that, pursuant to DR 5-105(C) and RPC 1.9(a), an attorney is prohibited from engaging in a former-client conflict of interest even when the former client is deceased, as long as the former client's interests survive his or her death and are adverse to the current client during the subsequent representation. Having determined that a deceased client may be a former client for purposes of the former-client conflict-of-interest rules, we turn to whether the Bar proved the necessary elements under those rules.
The court found that the elements of the offense were established.
The attorney also engaged in unrelated misconduct in which a document was recorded by use of a page from another document without authorization. The attorney was suspended for 150 days.
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