Focus on Professional Responsibility Conflicts of Interest — The Basics

Part Three—Conflict with Former Client The gist of MRPC 1.9 is that, even after a lawyer’s representation of a client ceases, the lawyer may not represent a prospective client (Client A on Decision Tree No. 3) in the same or a substantially related matter in which the prospective client’s interests are materially adverse to those of the former client without the consent of the former client (Client B on Decision Tree No. 3.) The aim is to prevent use of protected information about a client to that client’s detriment.1 Later adverse representation of a former client is regulated, but not flatly prohibited, as is direct representation adverse to a present client under MRPC 1.7.2 It is permissible if the prospective representation is not substantially related and if no protected information will be used or revealed. But, even if the matters are neither the same nor substantially related, nevertheless the lawyer may still not represent another person in a matter in which the prospective client’s (A) interest are materially adverse to those of the former client (B), if information protected by MRPC 1.6 (e.g., ‘‘confidences or secrets’’ of the former client) would be revealed, or used to the disadvantage of the former client. Even if otherwise prohibited, such a conflict may be waived, if the former client consents after consultation. As with a present client, this analysis does not turn upon any likelihood of an ‘‘appearance of impropriety,’’ which was the test applied by the former Code of Professional Responsibility (CPR), and which is specifically rejected by both the American Bar Association’s Model Rules of Professional Conduct, as well as the Michigan Rules of Professional Conduct (MRPC), because it is too vague a standard for discipline.3 Unlike the CPR, the MRPC contains a specific provision (MRPC 1.9), which directly addresses former-client conflicts, with specific fact-based tests.