Working Through Adversity
| Jurisdiction | Georgia,United States |
| Citation | Vol. 26 No. 5 Pg. 0044 |
| Pages | 0044 |
| Publication year | 2021 |
Office of the General Counsel
BY PAULA FREDERICK
Your assistant forwards a call from a potential client.
"You probably don't remember me, but I live in Castleville, near the new recycling center," the potential client begins. "We met a couple of years ago when you helped Re-Use get its environmental permits, remember?"
"I remember meeting a lot of people at those neighborhood association meetings," you reply vaguely.
"We appreciated you coming out to explain things to us. I really liked how you handled all the neighbors' concerns. We thought the recycling center might bring a lot of traffic into the neighborhood, but it hasn't been a problem at all."
"I'm glad to hear things are going well," you respond. "How can I help you?"
"We just got word that a developer wants to build a gas station and convenience store across from the Re-Use Center. The city wants to change the zoning to allow it. The neighborhood association is against it; we're worried about contamination from underground tanks. When we thought about getting a lawyer to help us oppose it, we all thought about you."
"I'm flattered," you admit, "but I'm going to have to think about whether I can do it. The folks at Re-Use probably won't like it, but it really doesn't have anything to do with them."
Or does it?
Georgia Rule of Professional Conduct 1.9 prohibits a lawyer from representing a new client whose interests are materially adverse to those of a former client if the matters are substantially related and if the former client objects.
Some readers will disagree that the scenario above involves matters that are substantially related, but it comes directly from Comment 3 to the Rule: ".. a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations ...".
So how do you tell whether matters are materially adverse? Is it possible for a new representation to be materially adverse to representation of a former client if the former client won't even be a party to the new matter?
A new opinion from the American Bar Association provides some guidance.
Formal Opinion 497 (Feb. 10, 2021) includes examples of situations that involve "material adverseness." Most obvious is suing a former...
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