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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Arkansas Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Arkansas Rule

1.9:101      Model Rule Comparison

By a Per Curiam of April 16, 1990, 302 Ark. 615, 788 S.W. 2d 462 (1990), Arkansas adopted the amendments to Rules 1.9 and 1.10 as added to the Model Rules in 1987 and 1989. The Arkansas Rule is identical to the Model Rule.

1.9:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

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

In addition to the loyalty owed to the former client, the attorney has a duty of continuing confidentiality to the former client. Rule 1.9(c) bars the attorney from using confidential information to the disadvantage of the former client. See Comment [11].

1.9:210      "Substantial Relationship" Test

The different standards involved in potential conflicts under Rule 1.7 and Rule 1.9 necessitate a distinction between a present or continuing client and a former client. A client who has been served by a lawyer over a substantial period of time may assume that the attorney-client relationship continues. The burden is on the attorney to clarify the relationship. See the Comments to Rule 1.3. If the former client provisions of Rule 1.9 govern, disqualification of the attorney does not result unless a substantial relationship exists between the prior representation and the present action. Heathcoat v. Santa Fe Intern. Corp., 532 F.Supp. 961 (E.D. Ark. 1982) (no relationship between a law firm's 1966 preparation of a will and its 1982 defense of a suit brought by the former client against a second client).

Even a brief, unintentional representation of adverse interests in the same matter may be disqualifying. In First Am. Carriers, Inc. v. Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990), the insurer for one potential defendant in a multivehicular accident retained an attorney. The same day, the insurer for another potential defendant retained another attorney in the same firm. Although the second attorney had limited responsibilities, did not obtain any confidential information and withdrew three days later, upon discovering the role of the first attorney and the actual conflict of interest, the entire law firm was disqualified from further representation of the first defendant or its insurer. See David Ivers, Note, Prohibition Against Appearance of Impropriety Retained Under Model Rules of Professional Conduct, 13 U. ARK. LITTLE ROCK L.J. 271 (1991).

An attorney who filed a divorce action on behalf of a husband in 1982 was barred from representing the wife in 1987 to obtain an increase in child support payments, even though the 1982 action had been dismissed. Martindale v. Richmond, 301 Ark. 167, 782 S.W.2d 582 (1990). Although the 1982 proceedings and 1987 proceedings were not the same, they were substantially related. In the absence of consultation with and consent of the former client, the attorney acted unethically in proceeding with the representation of the wife. See McAdams v. Ellington, 333 Ark. 362, ___ S.W. 2d ___ (1998) (attorney who represented both spouse in divorce and annulment proceedings subsequently represented wife in disputes over property; appearance of impropriety standard required disqualification of attorney and reversal of judgment). However, a condemnation matter and a probate matter were not substantially related and did not require disqualification of an attorney who represented a client and eight years later opposed that client. Cobb v. Estate of Keown, 53 Ark. App. 171, 920 S.W. 2d 501 (1996).

An attorney who had been lead counsel for the Ford Motor Company from 1974 to 1982 was not disqualified from representing a plaintiff in an action for damages allegedly caused by a fire in a 1983 Ford pickup truck. See In re Ford Motor Company, 751 F.2d 274 (8th Cir. 1984) (rejecting the appeal from the trial court without expressing an opinion on the merits). The stricter requirements of the Professional Conduct Rules and the "appearance of impropriety" concept cast doubt on the continued validity of this decision.

1.9:220      Material Adversity of Interest

Arkansas has no case law or authority on this topic.

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

The "appearance of impropriety" concept, developed in the Code of Professional Responsibility, was rejected in these rules. In particular, Paragraph [5] removed that approach to the problem of the former client. However, in First American Carriers, Inc. v. Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990) and Burnette v. Morgan, 303 Ark. 150, 156, 794 S.W.2d 145, 148 (1990), the Arkansas Supreme Court applied that method of analysis in relation to the former client issue: the principle is "a rock in the foundation upon which [are] built the rules guiding lawyers in their moral and ethical conduct. This is a factor that should be considered in any instance where a violation of a rule of professional conduct is at issue." See David Ivers, Note, Prohibition Against Appearance of Impropriety Retained Under Model Rules of Professional Conduct, 13 U. ARK. LITTLE ROCK L.J. 271 (1991). See 1.9:210, 1.9:310.

1.9:300   Client of Lawyer's Former Firm

1.9:310      Removing Imputed Conflict of Migratory Lawyer

When an attorney switches law firms, the provisions of Rule 1.9(b) and 1.10(a) and the two presumptions come into play: 1) the attorney is presumed to have all the confidential knowledge that any member of the first firm possessed; and 2) the attorney is presumed, despite Rule 1.6, to share that knowledge with all members of the second firm. The first presumption is rebuttable and the burden is on the second firm to rebut the presumption. See Paragraphs [6, 7]. The second presumption is not rebuttable and the court will not erect a øChinese wallÓ or employ other institutional barriers to overcome the presumption.

In Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990), after the defense firm had represented a client for 18 months, a partner in the firm left and joined the firm that was representing the plaintiff. In view of the rebuttable presumption and the clear evidence that the attorney had acquired confidential information while in the first firm, he and his new firm were disqualified from continuing to represent the plaintiff. Accordingly, a judgment for the plaintiff was reversed.

The mere passage of time does not solve the conflict. An associate was in a firm which represented a husband in a divorce; seventeen years later, the associate (now a partner) was in a firm representing the ex-wife in enforcement of the alimony provisions. Since the second firm was unable to rebut the presumption that the associate had acquired confidential information while in the first firm, the judgment for the wife was reversed because the trial judge failed to disqualify the wife's firm. Norman v. Norman, 333 Ark. 644, ___ S.W. 2d ___ (1998).

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

Arkansas has no case law or authority on this topic.

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

An attorney who had prepared the articles of incorporation for a church was ethically prohibited from bringing an action against the church related to its corporate obligations. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). Although he had a constitutional right to be a party litigant, he was admonished not to make personal use of confidential information obtained through his prior representation of the church.