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Legal Profession
University of Georgia School of Law
Hashimoto, Erica J.

Successive Representation
–          MR 1.9 Duties to Former Clients
o    (a) lawyer may not represent another person against a former client in the same or substantially related matter in which the person’s interest are materially adverse to the interest of the former client absent informed consent in writing
§ notes; if matters are not substantially related do not need consent
§ does not mean that duty of confidentiality to former client has been set aside!
§ Not a consent plus Rule            
·         Rule does not mandate consent from present client, but under 1.7 may need to reveal and obtain consent for possible current conflicts that may arise?
o    (b) refer back here—don’t know if rest of the rule is pertinent
–          Analysis under MR 1.9
o    What are the 2 matters
o    Are they substantially related
o    Are the parties adverse
o    Does former client consent
–          Successive Representation and Joint Clients
o    Brennan’s- Brennan family owned Brennan’s Inc and Brennan’s Restaraunts (BR). Wegmann (W) jointly represented the family businesses in an application for 3 trademarks. A dispute in the family arose, and one side of family got BI and the other got BR. W elected to stay w/ BR and cut ties w/ BI. Suit was filed after a dispute arose over who had right to the trademarks. W retained Sprung (expert in field) to help him in defense of BR. BI moved to have both Sprung and Wegmann disqualified. Court granted motion as to W b/c the litigation was substantially related to previous representation of BI, but not as to Sprung.
§ Brennan Successive Representation Rule- A former client seeking to disqualify an atty who appears on behalf of his adversary need only show that the matters embraced within the pending suit are substantially related to matters for which atty previously represented him.
·         Rationale- there is presumption that confidences potentially damaging to client have been disclosed to the atty during the former period of representation; creates “appearance of impropriety”
§ Note- W argued that since there was a previous Joint Representation, there were no confidences or ACP; and that the court is more concerned w/ appearance of impropriety and loyalty
§ Sprung- court remands to determine if Wegmann’s work was joint representation, or single representation in previous trademark work
·         If Joint- there would have been no confidential information that D was not entitled to know, and since Sprung did not previously represent, no appearance of “impropriety”
·         If Single- P must prove that Sprung received info from W that P had not intended to disclose
–          Other Successive Representation Issues
o    Primary and Secondary (Accommodation) Clients
§ Brennanintroduces proposition that a lawyer in a failed joint representation cannot represent either side in a substantially related matter where interest are adverse absent informed consent
§ Allegaert- firm had previously represented Perot, P and Walston enter business agreement, firm represents both in regards to business relationship; things go bad, W sues P and firm is defending P, W seeks to disqualify P.
·         Held- W was accomodation client, in situation like this, it must be shown that atty was in position to have received confidential info from movant that movant would expect to be kept in confidence; here the only info learned from W was in the joint rep, therefore, nothing was intended to be kept in confidence from P
·         Note- would be very different situation if Firm represented Walston
§ Rest §132 cmt I- if lawyer undertakes an accommodation client for the primary client in joint representation, and if their interest later turn adverse, the circumstances warrant inference that accommodation client impliedly consented to lawyer’s continuing representation of primary client even on matters substantially related to joint representation
·         MR 1.7 cmt 29 does not support this approach b/c there is an appearance of partiality, and lawyer’s are required to be impartial in joint representation
o    “Substantially Related Matters” Several test/formulations
§ American Airlines- prior representation “need only be akin to the present action in a way reasonable persons would understand as important to the issues involved”
§ Analtyica- substantial relation if the lawyer could have obtained confidential info in first relationship that would be relevant to the 2nd
§ India- (Stricter test) 2 matters must be patently clear that issues are identical or nearly identical
§ MR 1.9 Cmt 3- SR if the involve same transaction or dispute or if there is substantial risk that confidential factual information obtained in prior representation would materially advance subsequent client’s position
·         Cmt 2 “a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type”
§ Rest SR if (1) matter involves the work the lawyer performed for the former client or (2) there is substantial risk that representation of the present client will involve the use of info acquired in the course of representing former client, unless info has become generally known
o    Competition as an Adverse Interest
§ MR 1.9 does not address, but MR 1.7 cmt 6- “simultaneous representation in unrelated mattes of clients whose interest are only economically adverse, such as representation of competing economic interest in unrelated litigation, doesn’t ordinarily constitute a conflict of interest and may not require consent of respective clients
§ Maritrans- firm dropped Maritrans as client, undertook to represent competition; had previously helped M enhance competitive position by efficiently achieving compliance w/ labor laws. M sought injunction from f

e. If lawyer is deemed to have represented client b/c of his position at old firm, but contact is such that he gets material information, he is disqualified per 1.9(a), but not new firm.
§ But still, If no contact while at old firm neither he nor new firm disqualified
·         Now suppose, Gulliver represented a client while at First & First, but he is no longer there. Can his old firm represent a new client with Substantially Related adverse interest if there are no more lawyers in firm w/ confidential info about former client??
o    Decided under 1.9 (b) 1.10(b).  First can take the case, even though it is SR, if none of the lawyers still with the firm “has” material confidential information about the previous client.  
o    Imputed Disqualification and Migratory Lawyers
§ Nemours Bradley started work at Biggs who represented Pierce (sub). Brad had previously been at Berg, and worked for Furlow who was a co party w/ Nemours in suit against Pierce. Neither Brad or Biggs knew of the respective involvement in litigation. When Brad’s superiors at Berg learned; they screened him from any contact w/ Pierce litigation. N moved to disqualify Brad and Biggs. Court disqualified Brad b/c he had access to N’s documents while at Berg. Court did not disqualify Biggs b/c screening appeared sufficient, “cone of silence” (rejected the “Chinese wall” analogy b/c it didn’t fit as well with the rule of ethics).  Also thought Pierce would be unduly prejudiced by disqualifying Biggs.
·         Note- N was not the client of Berg, Furlow was; court said that though there was no express client relationship; a fiduciary obligation still existed (compare Westinghouse)
§ Screening
·         Rest §124- not only allows screening for migratory lawyers, promotes screening in all successive representation, as long as the confidential information communicated to the lawyer is unlikely to be significant
·         MR 1.10 generally does not allow for screening, except by consent (note exceptions for potential clients and non lawyers)
o    Effect of Consent (Cmt 6)- some risk may be so severe as to not be cured by client consent
o    MR 1.11 allows for screening of government lawyers. Prior to 2000 Ethics Revisions, it was not allowed. 
§ Nemours departs from general rule against screening- despite Rest, most courts don’t allow