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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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(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 gives informed consent, confirmed in writing. (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 gives informed consent, confirmed in writing. (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 these Rules 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 these Rules would permit or require with respect to a client.
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| 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 (Duties to Former Clients), “[a]fter termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest.”
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| 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, confirmed in writing, represent another person in the same or a substantially 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, confirmed in writing, use to the detriment of the former client any confidential information that was obtained during the course of the prior representation. See MRPC 1.7 (addressing the effectiveness of an advance waiver); MRPC 1.10 (regarding disqualification of a firm with which the lawyer is or was formerly associated).
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| MRPC 1.9 may be implicated following the termination of a joint representation.
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| 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 gives informed consents, confirmed in writing, 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 without W’s informed consent, confirmed in writing. 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 and after the proceeding.
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| As noted in the Comments to MRPC 1.9, matters are “substantially related” for purposes of the Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.
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| Cases
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Illinois: |
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Gagliardo v. Caffrey, 800 N.E.2d 489 (Ill. App. 2003). An attorney, who formerly represented an estate
for a limited time period, was disqualified from representing the executor individually in beneficiary’s
action against her. The court noted that where the estate beneficiaries challenge the executor, the attorney
for the estate’s executor does not have an attorney client relationship with the beneficiaries. In this
case, however, the sole beneficiary never challenged the executor’s administration of the estate.
Therefore, the court concluded that, for the time the attorney represented the estate, he represented the
sole beneficiary thereby precluding him from representing the executor individually in that beneficiary’s
action against her.
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Maryland:
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Walton v. Davy, 586 A.2d 760 (Md. 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.
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Minnesota:
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Matter of Trust Created by Louis W. Hill, 499 N.W.2d 475 (Minn. Ct. 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.
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| Ethics Opinions
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Illinois:
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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.
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Maryland:
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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.
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Missouri:
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Informal Advisory Op. 960048 (1996). Attorney who represented a client in administering the estate
of client’s spouse and created an estate plan for that client has a conflict of interest under MRPC 1.9
if he serves as attorney to client’s child in a guardianship proceeding where the child wants a guardian
appointed for the client. If the client’s child believes that the client now needs a guardian and the attorney
obtained information during the course of his service to the client that could be used adversely
against the client, the attorney’s assistance of the child in a guardianship proceeding would be a violation
of the Rules of Professional Conduct.
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Informal Advisory Op. 930122 (1993). Attorney who counsels the two children and second wife of a
deceased client concerning the estate of that deceased client cannot later represent the children against
the second wife in dispute over estate unless second wife consents to such representation after full disclosure.
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New Mexico:
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Op. 2001-1. This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.2.
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South Carolina:
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Op. 94-14 (1994). Attorney represented grandmother as personal representative of the estate of her son
and as conservator of her grandson. The grandson was the beneficiary of a life insurance policy on the
life of his father. The grandmother, as conservator, allegedly assigned the life insurance policy to a
funeral home to pay the funeral expenses of her son. The attorney prepared an accounting on the conservatorship,
reflecting that the life insurance funds had been improperly paid to the funeral home. The
grandmother refused to sign the accounting. The conflict of interest between the grandmother and
grandson required the attorney to withdraw from representation of the grandmother and also would prohibit
the attorney from assuming representation of the grandson without the grandmother’s consent.
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Virginia:
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Op. 1720 (1998). The client of a lawyer representing the estate’s interest is the executor and not the beneficiaries.
The lawyer who represented the estate’s interest could not subsequently represent a beneficiary
on a related matter adverse to the estate’s interest.
MRPC 1.13 |
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