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Ethically Speaking: Addressing conflicts of interest with former clients

John E. Bernacki

Conflicts of interest. It seems that the longer you practice law, the more frequently these issues arise.

Not surprisingly, the conflicts are rarely simple with obvious, clear-cut answers. Instead, they tend to involve complex, convoluted fact patterns and present a maze of thorny ethical issues on par with those studied in law school ethics classes.

One issue frequently encountered after years of practice is whether taking on a new client’s case will present a conflict of interest with a former client. Sometimes, it’s a tough call, especially when there are rarely ethics decisions directly on point.

Fortunately, the New York State Bar Association’s Committee on Professional Ethics recently considered just such an issue in Opinion 871 (May 31). At issue in this case was whether an attorney could represent a new client “who is adverse to a former client in a different matter.”

The inquiring attorney sought to handle a divorce proceeding on behalf of a husband despite having represented the wife in a family court matter three years prior. The earlier family court matter involved a custody issue related to the wife’s child from a prior relationship with a different man, while the current matrimonial matter involved custody issues relating three children resulting from the husband and wife’s marriage.

The committee first turned to Rule 1.9(a) of the New York Rules of Professional Conduct, which provides that if the matter that an attorney seeks to handle on behalf of a current client is “substantially related” to the matter in which the attorney represented the former client, the attorney is precluded from representing the current client whose interests are materially adverse to the former client’s in the absence of written informed consent from the former client.

The committee then turned to the comment to Rule 1.9 for an explanation of the term “substantially related,” noting that the term was defined as follows: “Matters are ‘substantially related’ for purposes of this rule if they involve the same transaction or legal dispute or if, under the circumstances, a reasonable lawyer would conclude that there is otherwise a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. [Emphasis added.]”

The committee then emphasized that the appropriate inquiry does not revolve around whether actual confidential information was obtained in the prior proceeding, but instead, the relevant inquiry is whether there was a perceivable risk that a competent lawyer handling the earlier matter would normally acquire information that would be adverse to the former client’s position in the current case.

After explaining that it was unable to provide a determination in regard to the inquiring attorney’s situation because of insufficient information regarding the specific facts of the prior family court proceeding, the committee concluded that:

“Whether an attorney may oppose a former client in a new and different matter without the former client’s informed consent (confirmed in writing) depends on whether a reasonable lawyer would perceive a substantial risk that a competent attorney would normally have learned confidential factual information during the prior representation that could be used against the former client in the new matter.”

In other words, if there’s even the slightest possibility that it could be perceived that you may use information obtained during your prior representation to the benefit of your current client, err on the side of caution and obtain your former client’s consent before proceeding. It’s always better to take the high ground and avoid even the appearance of impropriety.

The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.

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