Can a lawyer let a former client (someone she represented in a mental-health commitment) live in her home to help with the transition to independent living?

Plain-English summary

A lawyer (using the pseudonym Jane Smith) had been court-appointed in 2005 to represent a young woman, A.C., in a mental-health proceeding, through a preliminary hearing, treatment, and continuing-treatment hearings, during which A.C. was committed to the North Dakota State Hospital. The lawyer, who had learned the full circumstances of A.C.'s life through the representation, wanted A.C. to live in her home as a temporary "stepping stone" to independent living, with the hospital staff's support and a plan for A.C. to move to a college dormitory. The lawyer had notified the court and withdrawn as A.C.'s attorney of record, then asked the committee whether the living arrangement was ethical.

The committee found that no North Dakota Rule of Professional Conduct directly addresses a lawyer having a former client live in the lawyer's home. It looked to Rule 1.9, which governs duties to former clients, and explained that the former-client conflict rules deal primarily with taking on a new representation adverse to the former client or using the former client's information against them. On the facts, the arrangement did not implicate Rule 1.9. The committee added that information relating to the representation of A.C. would still have to be kept confidential under Rule 1.6, except information that is "generally known."

The committee concluded that A.C. living with the lawyer would not violate any rule, so long as the lawyer did not take a position adverse to A.C.'s interests by representing another party, and so long as the lawyer maintained the confidentiality of information from the representation. It noted the opinion rests on the facts in the request letter.

In practice

This 2006 opinion applies North Dakota Rules of Professional Conduct 1.9 and 1.6. Under those rules, the committee held that no rule directly prohibits a lawyer from having a former client live in the lawyer's home, and that such an arrangement does not violate the former-client conflict rule as long as the lawyer does not later take a position adverse to that former client and continues to protect information from the representation under Rule 1.6 (other than information that is generally known). The committee held the conclusion depends on the facts presented.

Common questions

Q: Is it a conflict of interest for a lawyer to let a former client live with her?

A: Not on these facts. The committee said the former-client conflict rule (Rule 1.9) is mainly about taking on a representation adverse to the former client or using their information against them, and that the living arrangement did not implicate it.

Q: Do the lawyer's duties to the former client end when the representation ends?

A: Not entirely. The committee said information relating to the former representation must still be kept confidential under Rule 1.6, except information that is generally known.

Q: What conditions did the committee attach?

A: The arrangement is permissible so long as the lawyer does not take a position adverse to the former client's interests by representing another party, and so long as the lawyer maintains the confidentiality of information from the representation.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.9 (Model Rule 1.9, duties to former clients) and 1.6 (Model Rule 1.6, confidentiality of information). The committee read Rule 1.9 as directed at adverse representations and the use of a former client's information, neither of which the living arrangement involved, and treated Rule 1.6's continuing duty of confidentiality (with its "generally known" limit) as the only ongoing obligation engaged.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / N.D.R. Prof. Conduct 1.9 (duties to former clients)
• Model Rule 1.6 / N.D.R. Prof. Conduct 1.6 (confidentiality of information)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

See also

• SBAND Ethics Op. 05-01: Representing a Plaintiff Against a Former Client
• SBAND Ethics Op. 06-10: Prosecuting a Former Client
• ABA Formal Op. 479: 'Generally Known' Exception

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_06-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE

Opinion No. 06-09

The requesting attorney seeks the Committee’s guidance relating to her having a
former client live in her home.
I. FACTS.

Attorney Jane Smith (a pseudonym) (Smith) sent a letter requesting an opinion
from the Ethics Committee. In June 2005, Smith was court-appointed to represent a
young woman, A.C., in a mental health proceeding. Smith represented the young
woman at a preliminary hearing, during treatment, and at continuing treatment hearings.
During each of these hearings, A.C. was committed for treatment at the North Dakota
State Hospital (N.D.S.H.).

As A.C.’s counsel, Smith became aware of all the facts and circumstances
surrounding A.C.’s case and personal life. A.C. is without many options in terms of a
place to live once she is eventually discharged form N.D.S.H. Smith feels that A.C. has
progressed substantially in her treatment and discussions are now taking place about
where she should ultimately live.

Smith would like A.C. to live in her home. It is not Smith’s intent to have A.C. live
with her family permanently, but rather to have her home as a “stepping stone” for A.C.
to experience what it is like to live in a safe family environment and to get her feet
underneath her in terms of transitioning to independent living. Smith and A.C. have

discussed that they would like to see A.C. move into a college dormitory by either the fall

2006 or spring 2007 semester. Smith has discussed this arrangement with the N.D.S.H.
staff who support the decision and have told her they will stay in contact with her and
A.C. should any problems arise.

Smith has notified the Court of the situation and has withdrawn as A.C.’s attorney
of record. Smith’s letter requests an opinion from the Committee whether it is ethical for
A.C. to reside in Smith’s home based on the facts and circumstances in this case.

II. DISCUSSION.

The question presented is whether Smith, as A.C.’s former counsel, may have
A.C., a former client, live in her home. !t does not appear to the Committee that any of
North Dakota’s Rules of Professional Conduct directly address this issue.

Rule 1.9 of the North Dakota Rules of Professional Conduct states:

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

(a) Represent another person in the same matter in which that
person’s interests are materially adverse to the interests of the former

client; or

(b) Represent another person in 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

(c) Use information relating to the representation to the disadvantage

of the former client in the same or a substantially related matter except as

Rule 1.6 would require or permit with respect to a client.

The Rules regarding a conflict of interest in a former client deal primarily with
instances where the attorney would take on representation of another party whose
interests would be adverse to those of the former client’s, or represent someone in the
same or similar matter where those interests would again be adverse to the former

client. It does not appear that the situation presented by Smith with respect to A.C.

would be problematic or violate Rule 1.9.

Any information that related to the representation of A.C. would still have to be

kept in confidence, other than information that is “generally known.” See N.D.R. Pro.

Conduct 1.6 (Confidential Client Information).

III. CONCLUSION.

Under the Rules of Professional Conduct, A.C. living with Smith would not violate
any Rules so long as Smith does not take a position adverse to A.C.’s interests with
respect to representing another party. Further, so long as Smith maintained information
with respect to representation of A.C. in confidence, she would not be violating any
Rule. This Opinion is based upon the facts presented in the request letter.

This Opinion was drafted by Anthony J. Weiler and was adopted on June 1, 2006

by a majority of the Committee by an 8-2 vote, with 1 member absent.

penn Chair