Attorney-client relationship life long
Your case is closed and your relationship with your attorney has concluded. But are your confidences still safe? Yes. Your attorney has certain continuing obligations toward you and remains bound by confidentiality and conflict of interest rules.
An attorney who or law firm that formerly represented a client in a matter cannot use or reveal any information acquired during the scope of that representation to the disadvantage of that former client except when the information has become general knowledge or the disclosure is permitted or required by law.
An attorney who represented a client in a matter cannot then represent another person in the same or a substantially related matter in which that other person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent in writing and even with such consent, it is still not advisable to do so. For example, an attorney cannot represent the wife in a divorce and then the husband in a post-divorce proceeding.
When an attorney moves to another law firm, it is important that the attorney’s loyalty to the former client not be compromised while at the same time the attorney’s ability to change employment and accept new clients not be unnecessarily limited. Consequently, without informed consent in writing, an attorney should not represent a potential client in the same or a substantially related matter in which the attorney’s former firm had previously represented the former client if the interests of the former and potential clients are materially adverse and if the attorney had acquired confidential material information about the former client. In other words, simply because another associate in the attorney’s former law firm represented the wife in a divorce does not prohibit the attorney from now representing the husband in a post-divorce matter as long as that attorney acquired no knowledge relating to the wife’s case while working for the former law firm.
The potential for a conflict of interest involving a former client is far greater in pro bono clinics because of the nature of services provided and the method of operation. The legal clinics often focus on domestic violence and family law issues and serve hundreds of clients in doing so. Therefore, a high risk exists that an attorney representing a wife may come across the records regarding the husband’s representation in the past. Due to that, it might be necessary for the entire clinic to be disqualified. Such disqualification happens less in private practice where the firm may prevent it by implementing a “wall” of separation between any conflicted attorney and other attorneys in the firm.
In every situation, particular facts need to be analyzed. A conflict clearly exists if an attorney was so involved in the former representation that the subsequent representation would constitute changing sides in the matter. If the matters involve the same transaction or legal dispute, then the matters are substantially related and the conflict exists.
Sometimes, however, the matters are not substantially related and yet the representation is still not allowed or recommended. This occurs when an attorney has obtained confidential information from the former client. While complying with the duty of zealous advocacy for one client, the attorney might inadvertently use a former client’s confidential information for the benefit of the present client. For that reason, even if the former client gives informed consent in writing, it is ill-advised for the attorney to undertake the representation and the client should be careful when providing such consent.
To guard against conflicts of interest, attorneys are required to maintain adequate records and implement proper procedures.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.