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It has long been determined that an attorney owes to his client undivided devotion, and an attorney is forbidden, after terminating his relationship with a former client, to do anything which will injuriously affect his former client in any manner in which he formerly represented him, or at any time to use against his former client knowledge or information acquired by reason of the previous attorney-client relationship.
In the present situation, an associate lawyer is employed at a relatively large law firm that represents a client in a product liability suit against General Motors. The associate lawyer has been offered a position at a new firm that would double her salary. The only problematic fact that exists is that the new law firm, that has offered the position to the lawyer, represents General Motors in the same lawsuit brought by the lawyer's former firm.
The relevant provisions of The Michigan Rules of Professional Conduct in such a situation are 1.6 Confidentiality of Relationship, 1.7 Conflict of Interest General Rule, 1. Conflict of Interest Former Client and 1.10 Implied Disqualifications General Rule. MRPC 1.6 refers to information a client shares with a lawyer that is protected by the attorney-client relationship. The confidentiality rule is subject to limited exceptions, such as when a lawyer foresees that a client may commit a crime or when a client consents to the release of such information, but only after full disclosure to them. Even after withdrawal from an attorney-client relationship, the lawyer is required to refrain from making disclosures of the client's confidence, except as otherwise provided in MPRC 1.6.
The more relevant provisions to the first issue presented are MRPC 1.7 and 1. which deal with conflict of interests in representing new and former clients. MRPC 1.7 specifically forbids an attorney from representing a client, such as General Motors, if that representation will be directly adverse to another client, in this case a former client, which would trigger the applicability of MRPC 1.. The rule also sets out certain exceptions to the rule where representation would be permissible. One such situation is where both clients consent to the subsequent representation, which would be highly unlikely.
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MRPC 1. (a) states that
This is assuming that the lawyer at the former firm was the actual attorney that represented the client, if not MRPC 1. (b) would be relevant. Under MRPC 1. (b) even though the actual attorney may have not represented the client, conflict of interest rule may still be applicable as being a lawyer of a firm that represented that client, assuming that the lawyer had some familiarity or contact with the case. MRPC 1. (b) states that
There are several concerns that are raised regarding the conflict of interests rules, most important of these concerns is the fact that such a rule may act as an impermissible limitation on an attorney's or firm's right to practice. When it comes to the issue of being a limitation on the actual attorney, such an argument is relatively week as opposed to the firm's same argument. MI Eth. Op. R-4. The other competing interest is based upon the theory that clients would be less reluctant to share highly relevant information with their lawyer on the grounds that there may be a possibility that valuable information may be used against them at a later time. Disqualification is the topic of the second issue and is specifically addressed by MRPC 1.10.
Under MRPC 1.10 (b)
The so called screening process consists of several preemptive procedures to avoid disqualification of the firm. It begins by disqualifying the newly hired lawyer from any participation in the action. The second step involves instructing all other lawyers in the firm not to discuss the matter in the new lawyer's presence, or to receive or show any information to him. The third step deals with securing and segregating files of that matter from other files. The last step deals with the apportionment of fees. MI Eth. Op. RI-84. With screening employed, the next process would be to notify, in writing, the appropriate tribunal of the situation to obtain authorization to continue in the matter.
Based on the forgoing analysis, a lawyer who has changed firms may represent an opponent of a client of the lawyers former firm in connection with a matter handled by the former firm as long as the lawyer did not acquire any confidential or secret information about the client of the former firm or the matter at issue while working for the former firm. If the lawyer did acquire such confidential or secret information, the lawyer is prohibited from defending the new client, but the firm is not precluded if the new lawyer is screened and shows compliance with such a procedure.
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