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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Oregon Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 5-105(C)
Background References: ABA Model Rule 1.9, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 9.10, 12.2-.5, 12.21, 14.3, 16.24-.28

1.9:101      Model Rule Comparison [see also 1.7:100-:230]

Some language in DR 5-105(C) is similar to that in MR 1.9; however, DR 5-105(C) provides that the subsequent matter should not be “significantly related . . . when the interests of the current and former clients are in actual or likely conflict,” whereas MR 1.9(a) requires that the subsequent matter not be a “substantially related [one] . . . in which [the subsequent client’s] interests are materially adverse to the interests of the former client.”

DR 5-105(C)(1) and (2) articulate what matters are “significantly related,” namely, when (1) representation of the present client “would, or would likely, inflict injury or damage upon the former client in connection with . . . [a matter] in which the lawyer previously represented the former client” or (2) when representation of the former client “provided the lawyer with confidences or secrets as defined in DR 4-101(A), the use of which would, or would likely, inflict injury or damage upon the former client in the course of the subsequent matter.” These very loosely mirror MR 1.9(b), but MR 1.9(b) specifically concerns a lawyer’s representation of a new client after the lawyer leaves a firm.

Both Oregon’s DR and the Model Rule provide for permissive representation. DR 5-105(D) permits representation only after both the current and former client consent to the representation after full disclosure. MR 1.9(a) requires the former client’s “consent after consultation.”

1.9:102      Model Code Comparison [see 1.7:102]

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

Primary OR References: DR 5-105(C)
Background References: ABA Model Rule 1.9(a), Other Jurisdictions
Commentary: ABA/BNA § 51:201, ALI-LGL § 132, Wolfram § 7.4
OR Commentary: EOL §§ 12.2-.5

When a former-client conflict is involved, DR 5-105(D) expressly permits a waiver of the conflict based on full disclosure and consent by both the current and former clients. See DR 10-101(B); OSB Legal Ethics Op Nos 1991-17, 1991-11.

1.9:210      "Substantial Relationship" Test

Under DR 5-105(C), as under In re Brandsness, 299 Or 420, 702 P2d 1098 (1985), an attorney may represent a current client adversely to a former client unless the matters for the current and former clients are “significantly related.” Whether matters are “significantly related” is determined according to two subtests: (1) matter-specific and (2) information-specific.

Under the matter-specific test, the matters are significantly related if “[r]epresentation of the present client in the subsequent matter would, or would likely, inflict injury or damage upon the former client in any matter in which the lawyer previously represented the former client.” In re Brandsness, 299 Or at 430; DR 5-105(C)(1). For examples of situations in which a former-client matter-specific conflict existed, see OSB Legal Ethics Op Nos 1991-120 and 1991-62. See also In re McKee, 316 Or 114, 849 P2d 509 (1993) (matter-specific conflict existed when attorney who had represented both spouses in divorce subsequently represented one spouse against other in action for slander of title in order to secure release of lien that was obtained in divorce); In re Trukositz, 312 Or 621, 825 P2d 1369 (1992) (matter-specific conflict existed when attorney, who previously represented wife in establishing paternity of her then-husband with respect to her child, subsequently represented husband in couple’s divorce).

Under the information-specific test, matters are significantly related if “[r]epresentation of the former client provided the lawyer with confidential information the use of which would, or would likely, inflict injury or damage upon the former client in the subsequent matter.” In re Brandsness, 299 Or at 431; DR 5-105(C)(2). An attorney’s duty to avoid information-specific former-client conflicts is coextensive with the attorney’s duty to protect a client’s confidences and secrets under DR 4-101 and ORS 9.460(3). OSB Legal Ethics Op Nos 1991-120, 1991-17.

1.9:220      Material Adversity of Interest

[The discussion of this topic has not yet been written.]

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

[The discussion of this topic has not yet been written.]

1.9:300   Client of Lawyer's Former Firm

Primary OR References: DR 5-105(H)-(I)
Background References: ABA Model Rule 1.9(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 123, 124, 133, Wolfram § 7.6
OR Commentary: EOL §§ 12.21-.22

When a lawyer leaves a firm, neither that lawyer nor any firm member with which that lawyer later affiliates shall accept or continue employment that is prohibited by Oregon’s conflict-of-interest rules (DR 5-105(C)-(G)). DR 5-105(H). DR 5-105(H)’s prohibition applies only when the attorney joining a new firm worked on a matter or acquired confidences or secrets relating to that matter while at the old firm. DR 5-105(I); OSB Legal Ethics Op No 1991-120.

If the departing attorney is the only attorney at the former firm who worked on a matter or acquired confidences or secrets relating to the matter, and the client leaves as well, the former firm is “not prohibited by reason of the formerly associated lawyer’s work from thereafter representing a person in a matter adverse to a client that was represented by the formerly associated lawyer.” DR 5-105(J).

The former firm is not relieved of conflict if “one or more of the lawyers remaining at the firm would be disqualified pursuant to DR 5-105(C) or unless the closed file or other confidential information remains at the firm and consent is not obtained pursuant to DR 5-105(D).” DR 5-105(J). The former firm can avoid disqualification by surrendering the file to the former client and purging any confidential information in the firm’s electronic databases or other in-house systems.

1.9:310      Removing Imputed Conflict of Migratory Lawyer

If the attorney who has departed a firm is screened pursuant to DR 5-105(I) at the new firm, other attorneys at the new firm would not be disqualified under the conflict-of-interest rules. The screening procedures require that the “personally disqualified lawyer” serve an affidavit to that lawyer’s former law firm, attesting that during the period of the lawyer’s disqualification, that “lawyer will not participate in any manner in the matter or the representation and will not discuss the matter or the representation with any other firm member.” DR 5-105(I)(1). If requested, the disqualified lawyer must serve, upon final disposition of the subject matter, a further affidavit describing the lawyer’s compliance with these procedures. Also, one member of the lawyer’s new firm must serve an affidavit on the lawyer’s old firm, affirming the new firm’s awareness of the disqualification and describing the methods being used to screen the disqualified lawyer from participation in the matter. DR 5-105(I)(2). If requested by a member of the former law firm, the member of the new law firm must serve, upon the matter’s final disposition, another affidavit attesting to the new firm’s compliance with the screening procedures.

The availability of the screening option does not depend on client consent or the consent of the former firm. OSB Legal Ethics Op No 1991-120.

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

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

Primary OR References: DR 4-101, 5-105(C)(2), ORS 9.460(3)
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
OR Commentary:

As noted in 1.6:100, et seq., an attorney’s duty to avoid information-specific former-client conflicts under DR 5-105(C)(2) is coextensive with the attorney’s duty to protect a client’s confidences and secrets under DR 4-101 and ORS 9.460(3). OSB Legal Ethics Op Nos 1991-120, 1991-17.