Ezel / Ethics Opinions / SBAND

Does a former firm client conflict remain when the representing lawyer left and the old file was destroyed before a new adverse matter?

Short answer The committee said the firm could continue on the stated facts if no remaining lawyer possessed or could access material confidential information; it left litigation disqualification to the court.
Bar
SBAND
Issued
March 29, 1999
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1999. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer formerly at the firm had briefly represented a maternal grandfather in a custody-related consultation. Years later, after that lawyer left and the old file was destroyed in a fire, another firm lawyer undertook a custody matter for the paternal grandparents.

The committee found the adverse interests and substantially related matters satisfied the first two parts of the Rule 1.10(c) test. It said the third part, possession of material information protected by Rule 1.6, controlled the ethics answer. If no lawyer remaining at the firm possessed or had access to that information, the rules did not preclude the new representation on these facts. The committee reserved any litigation disqualification decision for the court.

Currency note

This opinion was issued in 1999, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the committee find the two matters unrelated?

A: No. It found the matters substantially related and the interests materially adverse.

Q: What condition controlled whether the firm could continue?

A: No remaining lawyer could possess or have access to material confidential information from the prior representation.

Q: Did the committee decide a court motion to disqualify the firm?

A: No. It said litigation disqualification was for the courts.

Background and rules framework

The committee applied North Dakota Rule 1.10(c), including its requirement concerning material information protected by Rule 1.6, and compared the firm’s access to information with the facts in Heringer.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.10(c).
  • North Dakota Rule 1.6.

Cases:

  • Heringer v. Haskell, 536 N.W.2d 362 (N.D. 1995), access to confidential information in a firm conflict.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

What do the rules say today, for your facts?

This opinion is from 1999. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.

Opens in Ezel Pro.

  • Checks the law as it stands today, not only this page
  • Cites every source it relies on, so you can verify it
  • Chat, drafting and research in one workspace