Bitcoin bar association ethics opinion12/28/2023 ![]() Okay, so let’s assume that the two matters are the same or substantially related. Knowledge of information as would ordinarily have been disclosed in the course of the representation is presumed and we will not force the former client to disclose it to protect it. One last point on the “substantially related” question: if two matters are substantially related, it’s irrelevant that the lawyer doesn’t remember anything about the first. Thus, while the two matters might appear on the surface to have nothing to do with each other, under the rule, they might be substantially related. Often, the lawyer will have received confidential information from the former client that would materially advance the new client’s defense by undermining the former client’s credibility as a witness. One is when a lawyer represents a client in a matter in which a former client is a witness for the other side. “Matters are ‘substantially related’’ for purposes 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.” (emphasis added).Rather, we must consider the nature of the information that the lawyer obtained in the first representation. It’s critical to remember that the answer doesn’t turn only on the nature of the matters themselves. While the answer to the former is often obvious, the answer to the latter frequently isn’t. It can be easier to remember that the Supreme Court long ago described the rule as prohibiting lawyers from “switching sides.” Īre the two matters the same or substantially related? It’s not always productive to get stuck on the rule’s language. If so, are New Client’s interests in Matter 2 materially adverse to Former Client’s?.Is Matter 2 the same as or substantially related to Matter 1?.“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”.New Client would like to hire Lawyer in Matter 2.The representation has concluded and there is no doubt that Former Client is, as the name suggests, a former client. Lawyer represented Former Client in Matter 1.A particular area of difficulty is whether duties to a former client create a conflict that prohibits representation in a new matter. Conflicts lie at the core of many inquiries of bar counsel.
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