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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Michigan Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 1.9
Background References: ABA Model Rule 1.9, Other Jurisdictions

1.9:101      Model Rule Comparison

MRPC 1.9 is substantially identical to the Model Rule.

1.9:102      Model Code Comparison

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

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

Primary Michigan References: MI 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
MI Commentary: Dubin and Schwartz MRPC 1.9

The principles in Rule 1.7 determine whether the interests of the present and former client are adverse.

1.9:210      "Substantial Relationship" Test

In deciding whether a substantial relationship exists, the scope and subject matter of the former and present representations must be examined. Some cases use a “transactional analysis,” which holds that a conflict exists if the prior representation and the subsequent representation involve even interconnected (but not the same) events which could reveal a pattern of client conduct; this is done on the theory that relevant confidences could have been acquired by the lawyer in question. Other cases use a narrower “issues analysis” finding a “substantial relationship” only when the issues involved in the two cases or transactions are identical or virtually so. Michigan has not taken a specific position as to which analysis should be used. One test recommended by the Comment to MRPC 1.9 suggests that the underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a “changing of sides” in the matter in question. In Harris v Agrivest Ltd Partnership II, 818 F Supp 1035 (ED Mich, 1993), rev’d on other grounds, 89 F2d 833 (CA 6, 1996), the court held that a lawyer who represented the plaintiff partner and the defendant limited partnership at a time when their interests were not adverse is not disqualified from representing the plaintiff under MRPC 1.9. The court stated that when two clients owe each other a duty to disclose all information to each other, the attorney should not have a duty of confidentiality concerning one of the parties. Id. at 1039. The court established a three-prong test for disqualification: (1) a past attorney-client relationship existed between the party seeking disqualification and the attorney it seeks to disqualify; (2) the subject matter of those relationships was/is substantially related; and (3) the attorney acquired confidential information from the party seeking disqualification. Id. at 1041. See also McKane v City of Lansing, 861 F Supp 47 (WD Mich, 1994) where the court held that an attorney representing a former mayor in a retirement benefits suit was not disqualified despite having represented the city in an action against a different former mayor. In Savoy Oil & Gas Inc v Preston Oil Co, 828 F Supp 34 (WD Mich, 1993), the court disqualified an attorney from representing the defendant where the attorney had represented the plaintiff parent company in a substantially-related matter. In Family Independence Agency v Osborne, 230 Mich App 712; 584 NW2d 649 (1998), the Michigan Court of Appeals held that a woman whose parental rights were terminated was denied a fair trial because the assistant prosecutor who represented the Family Independence Agency at the permanent awardship trial had previously represented her as defense counsel in the same neglect proceedings.

1.9:220      Material Adversity of Interest

See Discussion under 1.7:210 and 1.7:220 above.

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

Disqualification of counsel may be required if it appears that continued representation gives rise to the appearance of impropriety, even if actual impropriety is not shown. Auseon v Reading Brass Co, 22 Mich App 505; 177 NW2d 662 (1970); GAC Commercial Corp v Mahoney Typographers, Inc, 66 Mich App 186; 238 NW2d 575 (1975).

1.9:300   Client of Lawyer's Former Firm

Primary Michigan References: MI Rule 1.9(b)
Background References: ABA Model Rule 1.9(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 123, 124, 132, Wolfram § 7.6
MI Commentary: Dubin and Schwartz MRPC 1.9

1.9:310      Removing Imputed Conflict of Migratory Lawyer

See Discussion under 1.10:300 below.

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

See Discussion under 1.10:300 below.

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

Primary Michigan References: MI Rule 1.9(c)
Background References: ABA Model Rule 1.9(c), Other Jurisdictions
Commentary: ABA/BNA § 55:501-55:2001 , ALI-LGL § 213, Wolfram §§ 6.7 and 7.4
MI Commentary: Dubin and Schwartz MRPC 1.9

An attorney will be disqualified from representation where it appears that he is in a position to disclose his former client’s confidences. Auseon v Reading Brass Co, 22 Mich App 505; 177 NW2d 662 (1970).