When deciding whether one can represent a client against a former client, consider the confidential information issue.

I am confused about the conflict of interest rules. When can I represent another client when it involves the interest of a former client? 

Samuel C. Stretton.

The conflict of interest rules are set forth in Rule 1.7, the General Conflict of Interest Rule of Existing Clients; Rule 1.8, which is the Specialized Conflict of Interest Rule; and then Rule 1.9, which is the rule that concerns the Conflict of Interest involving Former Clients. Rule 1.9 is titled appropriately, “Duties to Former Clients.”

There is a difference between Rule 1.7 and Rule 1.9. Rule 1.7, which involves current clients and has the concept of concurrent conflict of interest, prohibits representation if the representation of one client will be directly averse to another client.

Now, Rule 1.9 involving duties to former clients has a slightly different standard. Under Rule 1.9, a lawyer who has represented a client previously shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially averse to the interest of the former client without the client's consent. Therefore, Rule 1.7 has a directly adverse test. Rule 1.9 has a same or substantially related matter test.

Before there is a discussion of the differences, it also should be noted under Rule 1.9(c) there is also the confidentiality rule. When a lawyer represents a client and now represents a new client, the lawyer cannot use information to the disadvantage of the former client or reveal information. Rule 1.9(c) sometimes stops representation where a former client is involved if the client might be a witness because of the confidentiality issue.

What is the difference between directly adverse and materially adverse in the same or substantially related matters?

This is a difficult issue. Some people think it may have been set up that way to protect the confidences and secrets of the former client, but Rule 1.9(c) appears to cover the confidentiality issue.

The first question then is whether or not the representation is adverse to the former client and, if so, are they the same or substantially related to the prior representation.

The review of the comments to Rule 1.9 finds a further definition. Under Comment 3 the following is noted:

“Matters are substantially related for the purpose of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessman and learned extensive private financial information about that person may not then represent the person's spouse in seeking a divorce. Similarly, 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 …”

Having said the above, Comment 3 also notes that a lawyer would not be precluded on the grounds of a substantial relationship from defending a tenant in the completed shopping center in resisting the eviction for nonpayment of rent. Also, the comment notes that information that may be obsolete due to the passage of time may be relevant in determining whether there is a substantial relationship.

This is a hard line to draw. Although the comment says in the example in the comment that the lawyer could represent the tenant for an eviction, but not the neighbors on the environmental matters, the question appears to come down to the receipt of confidential information. For instance, if the lawyer knew something about the way the shopping center was run from the prior representation, then he may be conflicted out. In other words, there is no hard and fast rule and everything is going to be decided on a case-by-case basis. Although Rule 1.9(c) talks about confidential information, apparently based on the Comment 3, the confidential information component is a part of the substantially related conflict of interest analysis.

Some courts have held the information gained by an attorney in representing the former client is the crux of the matter or substantially related to the subject matter of the current representation. In other words, a substantially related conflict really comes down to whether or not there is confidential information involved.

Therefore, under Rule 1.9, involving a former client, it appears the former client has to show that there was an attorney-client relationship with the lawyer, that the matters are substantially related, and there was confidential information given.

Rule 1.9 conflicts are thus very fact-specific. There was a Pennsylvania Bar Association's Legal Ethics Informal Opinion of 2011-026 that found a lawyer's representation of a person in a previous bankruptcy would not be substantially related to the lawyer's representation of an estate to remove the same person as the guardian. This opinion is somewhat confusing. It's hard to imagine that confidential information gained in the bankruptcy representation would not have some value to the lawyer in seeking to remove the person later as a co-guardian. In other words, it is a very murky area.

Perhaps the most common denominator then in deciding whether one can represent a client against in some capacity a former client is the confidential information issue. That appears to be the underlying key in terms of representation of new clients against former clients.

It is not a wise idea to discuss filing disciplinary complaints in open court.

A lawyer who is representing the opposing client in litigation I am involved in, has stated in open court and also in his pleadings, that he is reporting me to the Office of Disciplinary Counsel. Is that ethical?

Obviously, such statements fall far below the standard of courtesy that is supposed to exist between lawyers. There is too much of lawyers attacking each other's character and not enough of just developing the facts in the underlying case. To some extent that is the fault of the judiciary in not stopping those kinds of personal attacks on lawyers that should go nowhere in terms of resolving the underlying litigation issues.

Further, if a lawyer is going to complain about another lawyer and they believe they have a valid basis, then they should do so. There is no need to tell the world. The lawyer writes a letter and complains to the Office of Disciplinary Counsel who then will investigate the matter. A lawyer has certain obligations to report lawyers for acting badly under Rule 8.3 of the Rules of Professional Conduct. That rule sets forth a mandatory reporting requirement if the lawyer's conduct raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness. If that is the case, then a lawyer has to report the misconduct to the Office of Disciplinary Counsel.

Having said that, there is no need to say in open court or in a pleading that the lawyer is going to report the other lawyer to the Disciplinary Board. If the lawyer has done something wrong in the underlying civil case that would warrant bringing to the attention of the judge the misconduct, then the lawyer should raise the misconduct in terms of how it affects the ability to proceed on the underlying case. But there is no reason to reference the Disciplinary Board or try to use the Disciplinary Board as a form of intimidation or leverage.

There is more to this analysis. The confidentiality rule is found in Pennsylvania Rules of Disciplinary Enforcement, Rule 402. All disciplinary proceedings under that rule are confidential unless the client asks to make them public until there is a decision to file a petition for discipline.  There are exceptions to the confidentiality rule. For instance, disciplinary counsel is allowed to send a file to a district attorney or U.S. Attorney if misconduct would also implicate criminal statutes. There are also exceptions if one is running as a candidate for judicial office or for admission to another bar.

Further, since filing a complaint with the Disciplinary Board would then be confidential under Rule 4.2, at least in theory, the lawyer could be charged with violating that rule and disciplined.  But, more importantly, is Pennsylvania Rules of Disciplinary Enforcement, Rule 209. This rule is entitled, “Immunity.” This rule provides immunity to any complainants, disciplinary counsel, and members of the Disciplinary Board and their staff from any civil suit for conduct in the course of their official duties. Information provided to the Office of Disciplinary Counsel is confidential and persons making the communication are immune from civil suit based on the communication. The purpose of the immunity rule was obviously to encourage people to complain. It was also to protect the staff of the Office of Disciplinary Counsel to allow them to pursue their duties without fear of civil litigation. At times, it can be an injustice when someone makes a maliciously false complaint and causes a lawyer time and effort and monies to have the complaint dismissed. But that person would be immune from any civil litigation no matter how false the complaint was because of the underlying policy allowing immunity to ensure people feel they can come forward without fear of being sued if there are legitimate complaints. But the rule in its comment notes that the immunity only exists if the statements are pertinent material and during the regular course of the proceeding. In other words, if the person who makes the complaint and publicizes the complaint before the disciplinary proceedings are public in nature then they lose their immunity.

Therefore, if a lawyer is ill-spirited and wants to point out in pleadings or in open court that they have filed a complaint against the opposing lawyer, that will strip the lawyer of any immunity assuming the complaint made is incorrect or not accurate or false or bogus.

In conclusion, it is not a wise idea to discuss filing disciplinary complaints in court pleadings or in open court. Besides the lack of professionalism, every lawyer should be aware that by publicizing the complaints when the disciplinary matter is still nonpublic then they have lost their immunity and can be the subject of civil suits assuming there is a basis for such litigation.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.