20000237 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20000237

Rules: 4–1.9

Client-Lawyer Relationship

Duties to Former Client

Subject: Conflict of Interest - Former Client; Conflict of Interest - Imputed Disqualification

Summary: conflict of interest with client from lawyer's former firm

QUESTION: Attorney is a member of Firm. One of the partners, X, joined Firm several months ago. X has not represented E since joining Firm. Attorney commenced representation of a claim involving breach of contract concerning the sale of real estate on behalf of B against defendant D. In the course of completing discovery in that matter, Attorney sought to take the deposition of the real estate broker who represented D. E was the broker. Prior to joining Firm, X represented E in a completely unrelated matter, which concluded a couple of years ago. At some point, Attorney may find it necessary to amend the petition to include E. Attorney has concluded that E’s involvement as a witness presents no violation of the ethical rules. Attorney also believes that given the pending development in which E may be added as a defendant, likewise presents no violation based on the fact pattern. B has waived any conflict in writing. Is there a conflict?

ANSWER: Regardless of whether E is added as a defendant or continues as a witness, Attorney must analyze this situation under Rule 4 dash–1.9(b). If X obtained any information in the course of the previous representation of E that could be used to E’s detriment in the current proceeding, Attorney’s firm has a conflict. The information that could create a conflict could have come from any source, if it came to X in the course of representing E. If Attorney’s firm has a conflict, E would be the one to waive the conflict, although it would be necessary to inform B of the situation.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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