970082 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 970082

Rules: 4–1.9; 4–1.10

Client-Lawyer Relationship

Conflict of Interest: Former Client

Reference Note: Rule 4 dash–1.9, Duties to Former Clients, was amended effective July 1, 2007. Rule 4 dash–1.10, Imputation of Conflicts of Interest: General Rule, was amended effective July 1, 2007. This opinion is based on Rules 4 dash–1.9 and 4 dash–1.10 in effect prior to July 1, 2007.

QUESTION: A member of Attorney´s firm formerly represented D in a contract action. Attorney is now representing P against D in a negligence case. Does Attorney have a conflict?
ANSWER: Under Rule 4 dash–1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation that could be used to D´s detriment in the current case. Confidentiality under Rule 4 dash–1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. Attorney should review the file. Attorney may also want to ask opposing counsel in the current matter whether D is asserting that Attorney has a conflict under Rule 4 dash–1.9(b) and, if so, what confidential information from the previous representation D believes triggers the rule.

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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