Quandaries and Quagmires: Changes in former client conflict law.

Byline: William J. Wernz

Several aspects of a recent discipline reversed by a Lawyers Board panel - suggest that it is time for an update on Rule 1.9, "Duties to Former Clients." A brief overview will frame the problems with the discipline.

There was no former client conflict rule until 1985, when Rule 1.9 was adopted. Protecting confidentiality was the main policy purpose for adopting Rule 1.9, with loyalty as a secondary purpose. Since 2005, amendments and case law have reduced the valuation of loyalty and further emphasized confidentiality as the primary Rule 1.9 value.

Rule 1.9(a) provides, "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." Rule 1.9(b) applies the same test where a lawyer in the firm has acquired confidential information.

In 2019, the Office of Lawyers Professional Responsibility (OLPR) issued a private admonition. The admonition alleged a Rule 1.9 violation in a lateral hire situation. An attorney (A) had represented a client (C) in her old firm. More than a year later, after A joined a new firm, a lawyer (L) in A's new firm commenced litigation against C, on behalf of a bank (B). OLPR issued an admonition to L, alleging that the litigation against C was the same or substantially related as the matter on which A had represented C. L appealed, a Lawyers Board panel conducting a hearing, the parties filed briefs, and the panel reversed the admonition.

The admonition mistakenly charged that L violated Rule 1.9. However, Rule 1.9's prohibitions apply directly only to lawyers in a firm that represented C, i.e. to A's old firm. L moved to dismiss the Rule 1.9 charge. OLPR's brief did not attempt to defend the charge.

To support the remaining charge of the admonition, OLPR's brief relied heavily on what was once the leading Minnesota case on Rules 1.9 and 1.10. Lennartson v. Anoka-Hennepin Independent School District No. 11, 662 N.W.2d 125 (Minn. 2003). With narrow exceptions, Rule 1.10 imputes conflicts throughout a law firm. However, rule amendments and newer case law have superseded Lennartson in important ways. (For a critical review of Lennartson, see William J. Wernz, Ethics Walls in Minnesota Lennartson Revisited, Minn. Law., Aug. 4, 2003.

'The same matter'

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