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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-29
Conflict of Interest, Former Client
Your inquiry poses a problem of whether or not you may continue to represent your present client, a physician, in an action against a hospital and various local physicians involving a claim of unwarranted suspension of your client's courtesy privileges at the hospital. The nature of your particular concern arises out of the fact that some of the defendant physicians are former clients of the firm, for whom you have performed ""collective"" work.
As you have noted, your dilemma is controlled, in large part, by Rule 1.9 which states:
""A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another 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; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.""
The appropriate focus of the rule, as applied to your inquiry, is whether the two matters are substantially related, which, as you note, connotes the ""changing of sides in the matter in question."" See Comments, Rule 1.9. The nature of your collection work and the present tort action appear to be wholly distinct and unrelated, and therefore, your present representation does not appear to be prohibited by Rule 1.9(a).
It is necessary to note, however, that Rule 1.9 does limit your use of information gained as a result of your prior representation, except as permitted by Rule 1.6 or when the information becomes known generally. Rule 1.6 generally protects all information relating to the former client's representation, e.g., revelations made to the lawyer by the client, even if the prospective client decides not to engage the services of the attorney. See Comments, Rule 1.6. From the facts presented by your inquiry, it does not seem that the confidentiality exceptions set forth in Rule 1.6(b) would apply, and therefore, information obtained from your former clients, related to their representation, remains confidential and sealed.
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