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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

1.9 Rule 1.9 Conflict of Interest: Former Client

1.9:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.9
  • Background References: ABA Model Rule 1.9, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.9:101   Model Rule Comparison

ARPC Rule 1.9 differs from MRPC Rule 1.9 in that its language is more limited and it does not incorporate a client of a former firm of which the lawyer was associated in the applicability of Rule 1.9. ARPC Rule 1.9 does not reach as far as MRPC Rule 1.9 in that ARPC Rule 1.9 only addresses the formal representations by an individual lawyer while the model rule addresses formal representation not only by the individual lawyer, but also any representations by that lawyer's former firm. Under ARPC Rule 1.9 a lawyer may not represent a party in a matter substantially related which is adverse to a previous client without consulting the previous client and receiving his consent. A lawyer also may not use information previously obtained while representing a client later to the disadvantage of that client unless the information is generally known or as Rule 1.6 or Rule 3.3 would allow with respect to the client.

In Ex Parte Intergraph Corporation, 677 So.2d 858 (Ala. 1995), the Court addressed the importance of filing a motion to disqualify counsel based on conflict of interest "within a reasonable time after discovering the facts constituting the basis for the motion." In Intergraph an attorney was hired to represent a plaintiff in a lawsuit against a corporation at which the attorney had worked as in-house counsel seven years prior to filing the suit. A second attorney who had been involved in previous litigation against the same corporation was added pro hac vice. Although the corporation was aware of both attorneys previous involvements, the corporation did not object until six months after the case was filed and after discovery had begun. "In order to disqualify an attorney for conflict of interest, the former client must show that he or she had an attorney-client relationship with the attorney the former client seeks to disqualify and that the attorney represented the former client in a substantially related matter." The Court, however, held that the corporation should have objected at the beginning of trial and since it did not, it had waived its right to disqualify the attorneys based on a conflict of interest.

1.9:102   Model Code Comparison

Inapplicable.

1.9:200 Representation Adverse to Interest of Former Client--In General

  • Primary Alabama References: AL Rule 1.9(a)
  • Background References: ABA Model Rule 1.9(a), Other Jurisdictions
  • Commentary: ABA/BNA § 51:201, ALI-LGL § 132, Wolfram § 7.4
  • Alabama Commentary:

1.9:210   "Substantial Relationship" Test

In Ex Parte Central States Health and Life Co. of Omaha, 594 So.2d 80 (Ala. 1992), the Court addressed ARPC Rule 1.9 and the representation of a party in a "substantially related matter" to a former client. The lawyer had served as a local counsel in defense of Central States in a bad faith lawsuit. The lawyer had minimal involvement in the defense of Central States and the case was soon settled without the attorney's knowledge. Within a year an attorney in the same firm was asked to join as co-counsel in litigating a case against Central States for breach of contract and bad faith. Central States moved to have the attorney disqualified based on conflict of interest. The Court held that the two cases were not substantially related to each other, but even if they were, the firm's involvement in the first case was so minimal that no information was acquired which could now be used against Central States. Therefore, the Court held there was no conflict of interest involving the former representation of Central States.

Ethics Opinion RO-91-42 addressed ARPC Rule 1.9(a) and the representation of a client adverse to a former client. The opinion explained that in order to be in violation of ARPC Rule 1.9, the representation must be "in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client." An attorney had previously represented a client in a worker's compensation claim. Years later the former client's children were involved in an automobile accident and the former client sued on behalf of her children. The attorney sought advice from the General Counsel as to whether representing the driver, the owner and the employer of the driver of the vehicle which collided with the minor children would be an ethical violation. The General Counsel stated that there appeared to be no legal relationship between the former client's worker's compensation representation ten years before and the present case. Therefore, the opinion stated that the two matters were not "substantially related" and that there would not be a conflict of interest as long as the attorney did not use any confidential information violating the original representation.

1.9:220   Material Adversity of Interest

In Ex parte Tegner, 675 So.2d 514 (Ala.Crim.App. 1995), an attorney was appointed to represent a defendant charged with murder. The attorney previously had represented the only eye witness to the murder in a DUI charge. The Court held that, in the absence of consent from both the defendant and the eye witness, Rule 1.9 was violated.

1.9:230   Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]

Inapplicable.

1.9:300 Client of Lawyer's Former Firm

  • Primary Alabama References: AL Rule 1.9(b)
  • Background References: ABA Model Rule 1.9(b), Other Jurisdictions
  • Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 123, 124, 133, Wolfram § 7.6
  • Alabama Commentary:

1.9:310   Removing Imputed Conflict of Migratory Lawyer

See Section 1.9:101.

1.9:320   Former Government Lawyer or Officer [see 1.11:200]

See Section 1.11.

1.9:400 Use or Disclosure of Former Client's Confidences

  • Primary Alabama References: AL Rule 1.9(c)
  • Background References: ABA Model Rule 1.9(c), Other Jurisdictions
  • Commentary: ABA/BNA § 55:501-55:2001, ALI-LGL § 132, Wolfram §§ 6.7 and 7.4
  • Alabama Commentary:

See Section 1.9:101.