Mark Hinderks of Stinson, LLP. Courtesy photo

Dear Ethics Lawyer

This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.

Question: My firm has represented a wealthy family in estate planning matters for many years. In addition, for at least 15 years, the firm represented a corporate business owned by family members in various general business matters, for which time has been billed to a general file in the company's name. The business has been in decline, and there is no current matter. Time was last billed to the company's general file and paid about a year ago, but the general file has never been closed. Can the firm now undertake an action adverse to the company if the substance of the action has nothing to do with and is not substantially related to any prior representation?

A. This question boils down to whether the company in question is a current client, in which case bringing an action against it, even on an unrelated matter, would be a concurrent conflict under Model Rule 1.7, or whether it is a former client, in which case Rule 1.9 would permit adversity in a matter that is not substantially related to anything the firm did for the company (provided the firm also doesn't use or reveal any information related to its work for the company). In the case of a discrete representation with an engagement letter that states that the representation concludes when the matter is complete or has been resolved, this is usually a fairly easy determination—the client has become a former client at the defined and agreed point in time. Here, that is not the case. This is a question of fact involving all the circumstances of the relationship. Unfortunately, on the circumstances you relate it is not a bright line time-based test. Without specific agreement and with a long history of overlapping matters, there is no magic number of months or years from "last work" that converts a current representation to a former representation for this purpose.