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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-22
Conflicts: Suit against former client
In your letter you have advised that, last year, a partner in your law firm undertook representation of an individual (""B"") in the defense of a zoning violation complaint brought by a next door neighbor (""A""). Subsequently, the subject partner left your law firm and now practices with another law firm in the same community. You further advised that, this year, A has approached you with the request that you represent A in the defense, of a complaint (presumably a zoning violation complaint) that was filed against A's property by B, who continues to be represented by your former partner. You state that the complaint against A is new and independent of any action that A may have had against B; however, you acknowledge that both complaints are similar in nature, in that they regard each other's houses.
B, through your former partner, has put you on notice of their opposition to your representation of A in the complaint filed against A by B; and, you have requested the opinion of this Committee as to any potential violation of the Maryland Rules of Professional Conduct involved in your proposed representation of A.
First of all, the fact that you did not personally represent B last year is not material to the issue in that B was represented by a partner of your law firm at the time; and, under Rule 1.10(a) of the Maryland Rules of Professional Conduct, the representation of B by your partner would be imputed to you. Secondly, Rule 1.9 prohibits a lawyer (or, in this case, by virtue of Rule 1.10, a law firm) from representing a person ""in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.""
However, the disposition of this matter involves the applicability of Rule 1.10(c) which provides, ""When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter.""
In your letter you give your impression that Rule 1.10(c) would appear to indicate that your representation of A is proper under the circumstances since it would not concern a matter which is the same or substantially related to that in which your former partner represented B. You state that, although the complaints filed by the two parties are similar in nature, they ""do not necessarily involve similar facts and, therefore, do not appear to be substantially related."" Further, you note that during the representation of B by your former partner, you had no knowledge, actual or otherwise, of any confidential information provided your former partner by B.
A determination as to whether or not the provisions of Rule 1.10(c) would require you to disqualify yourself from representation of A must be based upon an analysis of the facts which have not been made available to this Committee. It seems to this Committee that, while perhaps in form the actions by A and B against one another are separate and independent and depend upon somewhat different facts, in substance they may well be both a part of the same controversy, with the complaint now filed by B against A being simply a new stage or dimension, i.e. more in the nature of a counterclaim rather than a truly separate and independent action. If so, the matter would seem to be ""substantially related."" However, you must make this determination.
In addition to the requirement that the matter must be ""the same or substantially related"" there is the further requirement that your firm not be in possession of confidential information acquired from B in the original representation which can now be used against B through your representation of A. Notwithstanding the fact that you personally are not in possession of any such confidential information, the requirement extends to ""any lawyer remaining in the firm."" Again, this is a determination you must make.
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