After briefly representing a conservator, can a lawyer turn around and represent the ward against that conservator, and must the lawyer tell the court about the conservator's apparent wrongdoing?

Plain-English summary

A ward, dissatisfied with her conservator (himself a lawyer acting as attorney for the conservatorship) and with the handling of her late mother's estate, retained lawyer X. In a tangled sequence, X ended up signing an answer in the mother's estate as attorney for the conservator, after the chancellor declined to accept the conservator's resignation. X later concluded the conservator had mishandled the ward's funds and asked him to resign; the conservator refused. X posed four questions to the Committee.

On whether X had represented the ward, the conservator, or both, the opinion declines to opine, calling it a question of law; but because X said he signed the answer as attorney for the conservator, the Committee assumes an attorney-client relationship existed and treats the conservator as a former client. On whether X may now sue to remove the conservator, the opinion applies Rule 1.9: a lawyer is not disqualified from a matter adverse to a former client unless the prior representation was substantially related to the new matter or the lawyer received privileged information usable against the former client. Citing ABA Formal Opinion 342 and Church of Scientology of California v. McLean, and finding no substantial relationship between the limited representation of the conservator and the proposed action, and no privileged information received, the opinion concludes X is not disqualified.

On referral, the opinion concludes no rule would bar X from referring the matter to another attorney and sharing the pertinent facts so that lawyer could act for the ward. On informing the court, the opinion notes all of X's information came from reviewing the court file and applies Rule 3.3(d), which requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts that will let it make an informed decision; the Committee concludes X has a duty to inform the chancellor of these matters even if they are apparent from the court file.

In practice

Under this opinion, the substantial-relationship test of Rule 1.9 governs whether a lawyer may act against a former client; absent a substantial relationship and absent privileged information from the prior representation, the lawyer is not disqualified. Where disqualification is in doubt, the opinion confirms the lawyer may instead refer the matter to another lawyer and convey the relevant facts. Separately, Rule 3.3(d) imposes a duty of candor in ex parte proceedings: the opinion concludes the lawyer must inform the chancellor of material facts, here the conservator's apparent wrongdoing, even though the lawyer learned them from the court file.

Common questions

Q: Can a lawyer who briefly represented a conservator later sue him on the ward's behalf?

A: Per this opinion, yes, where the prior representation was not substantially related to the new matter and the lawyer received no privileged information, so Rule 1.9 does not disqualify him.

Q: What is the test for being adverse to a former client?

A: The opinion applies Rule 1.9's substantial-relationship test: disqualification requires a substantial relationship between the matters or privileged information usable against the former client.

Q: If disqualified, can the lawyer refer the matter elsewhere?

A: The opinion concludes no rule bars the lawyer from referring the matter to another attorney and informing that lawyer of the facts so action can be taken for the ward.

Q: Does the lawyer have to tell the court about the conservator's apparent wrongdoing?

A: Yes. The opinion applies Rule 3.3(d) and concludes the lawyer has a duty to inform the chancellor of the material facts, even if apparent from the court file.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.9 (duties to former clients, the analog of Model Rule 1.9), quoting its substantial-relationship and information-use provisions, and Rule 3.3(d) (candor toward the tribunal in ex parte proceedings, Model Rule 3.3(d)). It draws the disqualification standard from ABA Formal Opinion 342 and federal case law.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Mississippi Rule 1.9: duties to former clients, including the substantial-relationship test.
• Model Rule 3.3(d) / Mississippi Rule 3.3(d): in an ex parte proceeding, a lawyer must inform the tribunal of all material facts known to the lawyer that will enable an informed decision.

Cases:

• Spragins v. Huber Farm Service, Inc., 542 F. Supp. 166, 171 (N.D. Miss. 1982), disqualification adverse to a former client is an ethical consideration.
• Church of Scientology of California v. McLean, 615 F.2d 691, 692 (5th Cir. 1980), the substantial-relationship and privileged-information standard.

Other opinions cited:

• ABA Formal Opinion 342 (1975): a lawyer should not represent a party adverse to a former client in a substantially related matter.

See also

• MS Bar Ethics Op. 106: Suing a Former Client With No Substantial Relationship
• MS Bar Ethics Op. 131: Representing a Former Adverse Party
• MS Bar Ethics Op. 128: Suing a Former Client in an Unrelated Divorce

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/90/
• Original PDF: https://www.msbar.org/media/1096/et_op_90-amended.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 90

OF THE MISSISSIPPI BAR

RENDERED January 19, 1984

AMENDED April 06, 2013

CONFLICT OF INTEREST - A lawyer need not disqualify himself in a matter concerning a former client unless the terminated employment had some substantial relationship to the new matter or unless he received privileged information that might be used in the new matter against the former client.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on facts which we summarize.

The adult ward of a conservator contacted lawyer X concerning dissatisfaction with the conservator and dissatisfaction with the manner in which executrix was handling the estate of the ward's deceased mother. The conservator is himself a lawyer and is acting as attorney for the conservatorship.

X informed the conservator of the ward's dissatisfaction and the conservator expressed a desire to resign. The conservator invited X to be present and represent the ward at a hearing on a petition for the sale of real property which was pending in the mother's estate. Thereafter, X reviewed the court file in the conservatorship and concluded that the conservator had mishandled the ward's funds and was, therefore, personally liable to the ward.

The conservator filed a final accounting and tendered his resignation to the court. X prepared and filed a petition for the appointment of a substitute conservator, in which the conservator joined. However, the Chancellor refused to accept the resignation of the conservator at that time, preferring instead to require the present conservator to serve until the mother's estate was finally settled.

When the petition for the sale of real property was called up for hearing in the mother's estate, the conservator informed the court that he had no objection to X appearing as attorney for the ward. The Chancellor inquired as to whether X had filed a written answer objecting to the sale. X responded that he had prepared an answer on behalf of a proposed replacement conservator but, inasmuch as the original conservator had not been discharged and the replacement conservator had not been appointed, the answer had not been filed.

The court took a recess in order for the conservator to determine whether he wished to file the pleading. The conservator signed the answer, striking all references to the proposed replacement conservator and substituting his name therefor. X signed the answer as attorney for the conservator and the same was filed in the mother's estate.

The hearing was not resumed that day, but various negotiations were conducted in chambers. X never gave any advice to the conservator or had any confidential attorney/client discussions with him. During the course of the negotiations in chambers, the conservator withdrew portions of the answer that had just been filed.

At a later date, X informed the conservator that in his opinion the conservator had not properly handled the ward's funds and X asked the conservator to resign. The conservator then refused to resign.

Lawyer X has asked the Ethics Committee to respond to four questions.

The first question is: At the hearing on the petition for the sale of real property, did X serve as attorney for the ward, as attorney for the conservator, or as attorney for both the ward and conservator?

The answer to this question is a matter of law, not ethics, and the Ethics Committee is not authorized to express an opinion on a matter of law. However it is to be noted that X has stated that he signed the answer as attorney for the conservator; therefore, for the purpose of responding to the remaining questions the Committee will assume that a true attorney-client relationship existed between X and the conservator, and that the conservator would now be considered a former client of X.

The second question is: May X now file an action to have the conservator removed for his alleged wrongdoings?

Whether a lawyer is disqualified from representing an interest adverse to that of a former client is an ethical, not a legal, consideration. Spragins v. Huber Farm Service, Inc., 542 F. Supp. 166, 171 (N.D. Miss., 1982). Therefore, the Committee will respond.

In determining whether a lawyer should handle a matter which is adverse to a former client, the facts must be reviewed in light of Rule 1.9 of the Mississippi Rules of Professional Conduct (MRPC).

Rule 1.9, MRPC, provides that:

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same or a substantially related matter in which that person's interest 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 of when the information has become generally known.

As indicated in ABA Formal Opinion 342 (1975), a lawyer should not represent a party in a matter adverse to a former client if such matter is substantially related to the former representation. However, a lawyer is not required to sterilize his affairs to avoid baseless charges and he need not disqualify himself in a matter concerning a former client unless the terminated employment had some substantial relationship to the anticipated litigation or unless he received some privileged information which might be used in such anticipated litigation to the embarrassment or detriment of the former client. Church of Scientology of California v. McLean, 615 F.2d 691, 692 (5th Cir. 1980). The facts presented in this request do not indicate any substantial relationship between the limited representation of the conservator in the decedent's estate and the proposed representation of the ward against the conservator and, as stated above, X did not receive any privileged information from the conservator. Therefore, under the facts presented, X is not disqualified by Rule 1.9, MRPC.

The third question is: If he is deemed to have represented the conservator to such an extent that he may not now represent the ward against the conservator, may X ethically refer the matter to another attorney and inform the new attorney of all pertinent facts in order that he may then take the necessary action to have the conservator removed?

We are of the opinion that no Ethical Consideration or Disciplinary Rule would prohibit X from referring the matter to another attorney and informing that attorney of the facts in order that he might, if he deemed it appropriate, bring an action on behalf of the ward against the conservator.

The fourth question is: Should X take any action to inform the Chancellor of the conservator's alleged wrongdoing?

The facts presented indicate that all of the information possessed by lawyer X came from a review of the court file. Rule 3.3(d), MRPC, requires a lawyer in an ex parte proceeding inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision. The Committee is of the opinion that X has a duty to inform the Chancellor of these matters even if they are apparent from reviewing the court file.