Tuesday, June 26, 2007

Undivided Loyalty

The Lawyers' Manual on Professsional Conduct has a report on a recent decision of the Maine Supreme Court that provides an interesting analysis of the ethical duties owed to a former client under Rule 1.9. The attorney had represented a client in an accident case that lasted over two years and was settled on the day of jury selection. The lawyer is the cousin of the client's husband. When she asked him to represent her in a prospective divorce action, he declined. She proceeded with a different lawyer. The husband then retained the lawyer-cousin, which resulted in a disqualification motion.

The court affirmed the trial court's disqualification order. Not only had the lawyer received confidential information about the former client's medical history, but "also acquired information about the way in which [she] handled the litigation process." The insights concerning her "ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney...would be detrimental to her interests in another litigation, particulary in a contentious divorce action " and justified disqualification. (Mike Frisch)


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I have sympathy for the former client, but if that now counts as a disqualifying event even if there is no substantial relation between legal or factual issues, then at what point does the former client rule cease to exist for litigators and instead collapse into the current client rule?

Posted by: John Steele | Jun 26, 2007 11:26:24 AM

That was exactly what made this case interesting to me. The "insights" that led to disqualification would arguably be present in any prior contested litigation.

Posted by: Mike Frisch | Jun 27, 2007 6:06:15 AM

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