PART IV Chapter 16: Successive Conflicts

I. Underlying policies

A. Concurrent conflicts rule is premised on both the duty of loyalty and duty of confidentiality

B. In comparison, what justifies the rules governing successive conflicts?

II. Successive Conflicts and the Substantial Relation Standard

A. History of rule: Under the Model Code, the predecessor to the Model Rules, there was no rule governing successive conflicts of interest. Courts developed two related rules as a matter of case law.

1. Lawyer couldn’t represent a client if the representation was materially adverse to former client and was substantially related. This is the “substantial relation” test.

2. Lawyer could not use any confidential information adversely to a former client. This is the “confidential information” test.

3. Current rule: MR 1.9 adopted both common law rules -- 1.9(a) and (c), and then added an additional provision (b)

4. In many or most cases, the “substantial relation” and “confidential information” tests coalesce because courts are likely to find a substantial relation when the lawyer acquired confidential information.

B. The Substantial Relation Test

1. MR 1.9(a): lawyer shall not represent another person

a) “in the same or a substantially related matter”

b) “in which that person’s interests are materially adverse to the interests of a former client”

c) Unless informed consent in writing

2. Application

a) In re Kostich – Why is the substantial relationship test met?

b) R & D Muller (“Celebration Mickey”) – Why is substantial relationship test met?

c) Problem 16-1 – Why is the substantial relationship test met?

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C. Confidential Information Test

1. MR 1.9(c): a lawyer who has formerly represented a client shall not

a) Use information relating to the representation

b) To disadvantage of former client, except as MR allow or when information has become generally known; OR

c) Reveal information relating to the representation, except as MR allow.

2. Applications of MR 1.9(c)

a) Is MR 1.9(c) violated in Kostich?

b) Is MR 1.9(c) violated in Problem 16-2?

c) Is MR 1.9(c) violated in “Celebration Mickey”?

d) Is MR 1.9(c) violated in Problem 16-3?

3. There is another confidential information test in MR 1.9(b). We will cover 1.9(b) in chapter 17 because it involves job switching, which is a topic that arises often in the materials covered in chapter 17]

III. When is Representation Concurrent or Successive?

A. Compare the rules for concurrent conflicts (MR 1.7) with successive conflicts (MR 1.9).

1. How are they different?

2. Why are they different?

B. Banning Ranch Conservancy

1. Why does the 2005 retainer agreement not establish ongoing representation? Why is a “classic” retainer agreement different?

2. If Newport Beach were Shute’s current client, should Shute be disqualified?

3. If Newport Beach is a former rather than current client, should Shute be disqualified?

4. Given that, why are lawyers ever vague about whether representation has terminated?

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C. Relation to “Hot Potato” Rule

1. Why do lawyers want to be able to withdraw from representing clients?

2. If Shute had worked for Newport Beach on proposed mooring regulations in 2010 rather than 2005, should the firm be permitted to withdraw in order to represent the Banning Ranch Conservancy?

D. Application: Problem 16-4

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