ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 1.9
Conflict of Interest: Former Client.
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person, and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter,
unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
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ACTEC COMMENTARY ON MRPC 1.9
The completion of the specific representation undertaken by a lawyer often results in the termination of the lawyer-client relationship. See ACTEC Commentary on MRPC 1.16 (Declining or Terminating Representation). Thus, the completion of the administration of an estate normally results in the termination of the representation provided by the lawyer to the personal representative. The execution of estate planning documents and implementation of the client's estate plan may, or may not, terminate the lawyer's representation of the client with respect to estate planning matters. In such a case, unless otherwise indicated by the lawyer or client, the client typically remains an estate planning client of the lawyer, albeit the representation is dormant or inactive. However, following implementation of the client's estate plan the lawyer or the client may terminate the representation by giving appropriate notice, one to the other. Even if the representation is terminated, the lawyer continues to owe some duties to the former client. As stated in the Comment to MRPC 1.9 (Conflict of Interest: Former Client), "[a] lawyer's duties of loyalty and confidentiality as to the matter in which the lawyer represented a client continue after the termination of the client-lawyer relationship."
The lawyer who formerly represented a client in connection with an estate or trust matter may not, without the informed consent of the former client, represent another person in the same or a related matter if that person's interests are materially adverse to those of the former client. For example, a lawyer who assisted a client in establishing a revocable trust for the benefit of the client's spouse and issue may not later represent another party in an attempt to satisfy the new client's claims against the trust by invading the assets of the trust. Similarly, the lawyer may not without the informed consent of a former client use to the detriment of the former client any confidential information that was obtained during the course of the representation.
Rule 1.9 may be implicated following the termination of either a joint representation pursuant to MRPC 1.7 (Conflict of Interest: General Rule) or an intermediation pursuant to MRPC 2.2 (Intermediary).
Example 1.9-1. Lawyer (L) represented Husband (H) and Wife (W) jointly in connection with estate planning matters. Subsequently H and W were divorced in an action in which each of them was separately represented by counsel other than L. L has continued to represent H in estate planning and other matters. Because W is a former client, MRPC 1.9 imposes limitations upon L's representation of H or others. Thus, unless W consents, MRPC 1.9(a) would prevent L from representing H in a matter substantially related to the prior representation in which H's interests are materially adverse to W's, such as an attempt to modify or terminate an irrevocable trust of which W was a beneficiary. Also, under MRPC 1.9(c) L could not disclose, or use to W's disadvantage, information that L obtained during the former representation of H and W in estate planning matters. For example, L could not use on behalf of one of W's creditors information that L obtained regarding W's financial condition or ownership of property. Some experienced estate planners who represented both spouses in connection with estate planning matters prior to the commencement of a dissolution proceeding decline to represent either of them in estate planning matters during the pendency of the proceeding.
ANNOTATIONS
(Refer to Caveat)Cases:
Maryland:
Walton v. Davy, 586 A.2d 760 (Md. App. 1991). In this case an attempt was made to exercise a right of election on behalf of a widow with respect to the estate of her husband, who predeceased her by only three months. Both left large estates and were both survived by children of prior marriages. The lawyer who had previously represented one of the deceased husband's children in connection with his divorce and some other matters also represented the child as personal representative of the father's estate. The court held that it was not a conflict of interest with the estate or with the child for the lawyer to have discussed with the surviving spouse her right to elect against her husband's will.
Minnesota:
Matter of Trust Created by Louis W. Hill, 499 N.W.2d 475 (Minn. App. 1993). This case involved a trustee's petition for instructions and objections to a beneficiary's unilateral attempt to remove and replace the trustee. The beneficiary unsuccessfully sought to disqualify the law firm that represented the trustee and had earlier represented her in matters that were not substantially related to the litigation. The court rejected the beneficiary's argument that she was a "current" client of the law firm as a result of which the firm was precluded from representing the trustee. On the contrary, the court found that the beneficiary had terminated her relationship with the firm in early 1989 before the current litigation began.
Washington:
Kurbitz v. Kurbitz, 468 P.2d 673 (Wash. 1970). The court held that a lawyer who had previously represented a husband with respect to various matters was precluded from representing his wife in a divorce action. The court stated that a lawyer may not accept employment against a former client in a "matter that is substantially related to the former representation."
Ethics Opinions:
Illinois:
Advisory Op. 98-01 (1998). This opinion advises that a lawyer may represent the beneficiary of a trust in a breach of fiduciary duty action against the trustee even though the lawyer had previously represented the trust, the beneficiary and the trustee in a condemnation suit involving trust real property. The opinion observes that the scope and nature of the lawyer's prior representation of the trustee were limited to the trust's real estate subject to the condemnation proceeding during which time the lawyer may have gained confidential information regarding the trust's property in general. However, since the beneficiary was not contesting the trustee's activities in connection with the condemnation, the information the lawyer may have received "does not appear to be relevant to the Beneficiary's claim against the Trustee." Thus, the proposed representation of the beneficiary was not substantially related to the subject matter of the prior joint representation.
Maryland:
Md. Op. 89-14 (1989). A lawyer who represented a client in a divorce ten years earlier in which the client's ex-spouse received a note may represent the estate of the ex-spouse. However, if there are problems in connection with the note, the lawyer must withdraw from representing the estate unless the former client consents to the representation after consultation.
North Dakota:
N.D. Op. 94-07 (1994). A lawyer who had represented the husband in adopting his wife's daughter by a prior marriage may represent the wife in a dissolution action so long as the lawyer had not obtained confidential information from the husband that would be relevant to the dissolution action.
Virginia:
Va. Op. 1473 (1993). The lawyer for an estate, who was treated as counsel for the co-executors although each had independent counsel, may serve as counsel to two of the co-executors in their capacity as co-trustees only with the consent of the other co-executor.
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