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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-02
Conflicts; Multiple Clients
Your letter of inquiry poses the following facts. Approximately fifteen years ago, one of your clients was the estate of an individual (""Client A"") who had an ownership interest in a bar in College Park. The deceased also had a silent interest in real property in Anne Arundel County. Additionally, you represented the other owner of the bar business (""Client C"") as well as the bar (""Client B""). Client C also held an interest in the property in Anne Arundel County.
A portion of the work which you performed for Clients A and C was the preparation of an agreement which recognized their interests in the Anne Arundel property which included the interest of the decedent's wife and children (""Client D"") in that property. The nominal owner of that property died and it was sold to a new owner. The estate proceedings of that nominal owner contains as an exhibit the agreement which you prepared for Clients A, C, and D, and a deed was subsequently issued transferring all of the rights of Clients C and D to a new owner.
You currently represent an individual who was injured in an automobile accident in June 1986 which occurred in front of or in a ditch on or abutting the Anne Arundel County property. At the time of the accident, the actual owners of that property included Client C and Client D.
You state that it may be necessary to join the estate of the nominal owner and/or Clients C and D as party defendants in the accident case. The theory is that the ditch created an unreasonable risk and that the property owners (including Client C and Client D) should have done something about it.
Based upon the above facts, you have requested the Committee to render an opinion as to whether your prior representation of Clients A, B, C, and D creates an immediate or potential conflict of interest or creates any impropriety or appearance of impropriety. For the purposes of this opinion we assume that you do not currently represent any of those individuals and that they are former clients.
It is the Committee's view that this matter is controlled by Rule 1.9 of the Rules of Professional Conduct. That Rule is entitled, ""Conflict of Interest: Former Clients."" It provides that a lawyer who has formerly represented a client in a matter should not thereafter:
- represent another person in the same or a substantially related matter in which that person's interest are materially adverse to the interest of the former client unless the former client consents after consultation; or
- use information relating to the representation to the disadvantage of the former client except as Rule 1.6 [Confidentiality of Information] would Permit with respect to a client or when the Information has become generally known.
The fact pattern which you have provided indicates that your involvement with the Anne Arundel County property was limited to the preparation of documents relating to its ownership and title, and that your services did not extend beyond that limited scope. In that regard, you have stated that you acquired no knowledge of significance during your prior representation of Clients A, B, C, or D which did not later become a matter of public record. That consideration is important in light of the prohibitions against the disclosure of confidential information contained in Rule 1.6.
The provisions of Rule 1.9 prohibit subsequent representation in a ""same or substantially related matter."" As noted in the comments to Rule 1.9, the scope of a ""matter"" depends upon the facts of a particular situation or transaction. The underlying question is whether the lawyer was so involved in the matter that subsequent representation can be regarded as changing of sides on it.
In light of the limited nature of the services which you earlier performed regarding the ownership and titling of the Anne Arundel property and your statement that the information that gained is now a matter of public record, the Committee determines that your current representation of an accident victim does not involve the same or a substantially related matter to preclude you from undertaking his representation. However, earlier acquired information may not subsequently be used to the initial clients' disadvantage. See Rule 1.6. This prohibition would not preclude the use of generally know information about the earlier clients when later representing a new client.
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