Does a Virginia lawyer have a former-client conflict when his firm partner once represented people who are now adverse parties, even years later and now suing as trustees?

Plain-English summary

Nineteen years ago Attorney A represented X, Y, and Z in buying real estate. Attorney B later joined A's firm and now represents client C, who is suing X, Y, and Z over a possible right of way across that same property. The land is now held in trust, with X, Y, and Z serving as trustees. Attorney B asked the trustees' counsel whether there was any objection to a possible conflict, but months passed with no response. The committee was asked whether Rule 1.9 triggers a conflict for Attorney B, given five proffered reasons it might not.

The committee frames the matter as a "classic" former-client situation: Attorney A's former clients are now adverse parties, and Rule 1.10(a) imputes A's Rule 1.9 duty to Attorney B. It then rejects each escape hatch. The 19-year gap does not matter because Rule 1.9 has no statute of limitations and does not turn on what the lawyer remembers. That a title company, not Attorney A, searched and certified title goes only to whether the two matters are "substantially related," a fact-specific inquiry (citing LEO 1652, LEO 1613, and cases such as Tessier and In re Stokes) that the committee cannot resolve on the limited facts.

The committee also rejects the trust argument: representing a fiduciary is representation of that person in that role (citing LEO 1788), so X, Y, and Z remain "former clients" even though they now hold the land as trustees. Attorney B's unfamiliarity with the file does not help, because Rule 1.9 conflicts cannot be cured by a screen, only by consent; and B's absence from the firm during the original representation is irrelevant, since imputation under Rule 1.10(a) depends on A and B being in the same firm now. Finally, opposing counsel's silence is not constructive consent; Rule 1.9 requires actual "consent after consultation."

The committee declines to decide whether a conflict actually exists, because that depends on the unresolved "substantial relationship" question. It adds that even if Rule 1.9(a) is not triggered, the firm must still consider Rule 1.9(c): if Attorney A obtained confidential information in the purchase that is relevant to the new matter, Rules 1.9 and 1.10 would bar Attorney B's representation absent the former clients' consent.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a former-client conflict analysis under Rule 1.9 is not defeated by the passage of time, by a third party having done part of the original work, by the former clients now appearing in a fiduciary capacity, by a newer lawyer's lack of file knowledge, or by opposing counsel's failure to respond. Per the opinion, the determinative question is whether the two matters are "substantially related," a fact-specific inquiry the firm must make, and the only cure for a Rule 1.9 conflict is the former client's actual consent after consultation. The opinion also directs attention to Rule 1.9(c) where confidential information from the prior matter is relevant.

Common questions

Q: Does a former-client conflict expire after many years?

A: No. The opinion says Rule 1.9 has no statute of limitations and does not depend on how much the lawyer remembers, so a 19-year-old representation can still create a conflict.

Q: Are former clients who now sue as trustees still "former clients" for conflict purposes?

A: Yes. The opinion says representing a fiduciary is representation of that person in that role (citing LEO 1788), so clients who now hold property as trustees remain former clients under Rule 1.9.

Q: Can a screen or the new lawyer's lack of file knowledge cure the conflict?

A: No. The opinion says Rule 1.9 conflicts cannot be cured by screening; only the former client's consent works. Imputation under Rule 1.10(a) turns on the lawyers being in the same firm now, not on when each joined.

Q: Can silence from the former client's counsel be treated as consent?

A: No. The opinion says Rule 1.9 has no constructive-consent provision; the only cure is actual "consent after consultation," so an unanswered request is no safe harbor.

Background and rules framework

The opinion interprets Rule 1.9 (Model Rule 1.9, duties to former clients, including the (a) "substantially related" standard and the (c) confidential-information bar) and Rule 1.10(a) (Model Rule 1.10, imputed disqualification), and references Rule 1.6 and Rule 3.3 as they appear within Rule 1.9(c). It carries forward the "substantial relationship" analysis from former DR 5-105(D), summarized in LEO 1652 and LEO 1613.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Virginia Rule 1.9(a), (c) (former-client conflicts; substantial relationship; confidential information)
• Model Rule 1.10 / Virginia Rule 1.10(a) (imputed disqualification)
• Model Rule 1.6 / Virginia Rule 1.6 (confidentiality, as referenced in Rule 1.9(c))

Cases:

• Tessier v. Plastic Surgery Specialists, Inc., 731 F. Supp. 724 (E.D. Va. 1990) (substantial relatedness)
• In re Stokes, 156 B.R. 181 (Bankr. E.D. Va. 1993) (congruence of issues)
• Pasquale v. Colasanto, 14 Va. Cir. 54 (1988)

Other opinions cited:

• Virginia LEOs 1652, 1613, 1473, 1279, 1516, 1399, 1456 (substantial relatedness); LEO 1788 (representing a fiduciary in that role)

See also

• VA LEO 1810: GAL Conflict, Ex-Partner Opposing
• VA LEO 1811: Former Client File Confidentiality
• ABA Formal Op. 497: Materially Adverse Conflicts
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1806.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1806

CONFLICT OF INTEREST IN LITIGATION
INVOLVING REAL ESTATE THAT IS OWNED
BY TRUSTEES.

You have presented a hypothetical involving a potential conflict of interest arising out of a real
estate sale in the past and a current dispute regarding a possible right of way crossing that same
property. Nineteen years ago, Attorney A represented X, Y, and Z in purchasing the real estate.
Since that time, Attorney B has joined A’s firm. Attorney B now represents client C in
establishing the right of way crossing the real estate. C is in litigation against X, Y and Z
regarding the right of way. The land is now held not by X, Y and Z individually, but is held in
trust, with the three of them serving as trustees. Attorney B wrote to the trustees’ attorney to
determine whether there is any objection to a possible conflict of interest on the part of B.
Several months have passed, but the trustees’ counsel has not responded.
Under the facts you have presented, you have asked the Committee to opine as to whether
Attorney B has a conflict of interest here, even though:
1) The real estate sale was nineteen years ago;
2) Attorney A did not search or certify the title to the property as those tasks were
performed by a title company;
3) The current adverse parties are the trustees of a trust whereas the prior representation
was of the three purchasers as individuals;
4) Attorney B has not reviewed the file and was not at the firm at the time of A’s
representation of the purchasers; and
5) The trustees’ attorney has failed to respond to Attorney B’s inquiry about the matter.
Your request is concerned with whether Rule 1.9 triggers a conflict of interest for Attorney B.
Rule 1.9 (a) states that:
A lawyer who has formerly represented a client in a matter shall not thereafter
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 both the present and former client consent after consultation.
That provision applies not only to Attorney A but also to Attorney B because Rule 1.10(a)
states that:
While lawyers are associated in a firm, none of them shall knowingly represent
a client when any one of them practicing alone would be prohibited from doing
so by Rules 1.6, 1.7, 1.9, or 2.10(e).
Attorney A and Attorney B together would seem to be in a classic “former client” conflict
situation in that Attorney A represented parties who are now adverse parties in B’s case, which

may be substantially related to that of Attorney A. However, the request, in effect, raises five
potential reasons why no such conflict is in fact triggered here. The Committee will review each
of these five factors individually.
1) The real estate sale was nineteen years ago.
This posited reason would suggest some sort of “statute of limitations” on the application of
Rule 1.9. While of course, the long passage of time affects just how much a lawyer remembers
about a former client, Rule 1.9 nonetheless does not have a statute of limitations period, nor is
the presence of a conflict dependent upon a lawyer’s memory of his former client’s matter. The
Committee does not find that this particular factor prevents the application of Rule 1.9 to this
representation.
2) Attorney A did not search or certify the title as those tasks were performed by a title agency.
This factor goes to whether or not the two representations (the original purchase and the new
right-of-way dispute) are “substantially related” under Rule 1.9. This Committee has on several
occasions discussed what is meant by the term “substantially related.” A summary of those
opinions was outlined in LEO 1652 as follows:
Whether current representation adverse to a former client is "substantially related"
to the former representation is a fact-specific inquiry requiring a case-by-case
determination. LEO #1613 addressed "substantial relatedness," as follows:
[T]he committee has not established a precise test for substantial
relatedness under DR 5-105(D). The committee, however, has
previously declined to find substantial relatedness in instances that
did not involve either the same facts (LEO #1473), the same
parties (LEOs #1279, #1516), or the same subject matter (LEOs

1399, #1456).

Courts addressing the issue have stated that substantial relatedness exists where
the matters or issues raised in the current and the former representation are
essentially the same, arise from substantially the same facts, or are byproducts of
the same transaction, Tessier v. Plastic Surgery Specialists, Inc., 731 F. Supp. 724
(E.D. Va. 1990), or entail virtually a congruence of issues or a patently clear
relationship in subject matter. In re Stokes, 156 B.R. 181 (Bkr. E.D.Va. 1993).
See also Pasquale v. Colasanto, 14 Va. Cir. 54 (1988).
Those prior Committee opinions all analyzed the question under the former DR 5-105(D). The
Committee notes that the analysis remains appropriate as the newer Rule 1.9 (a) retains the
pertinent language from former DR 5-105(D).
While it may be possible that the two matters are substantially related, the Committee does not
have before it sufficient facts to make that determination. For example, while the facts state that
Attorney A did not search for or certify the title, the facts do not indicate whether the clients
independently made arrangements themselves with the title agency, whether Attorney A
recommended and vouched for the title agency, whether he handled the arrangements, or
whether he simply referred the clients to the agency. The Committee can only note that Attorney
B should consider all pertinent facts as indicated by the opinions outlined above in determining
whether the matters are “substantially related” so as to trigger a conflict of interest.

3) The current adverse parties are the trustees of a trust whereas the prior representation was of
the three purchasers as individuals.
This reason is put forth as removing the situation from the reach of Rule 1.9 under a theory that
the two matters do not involve the same parties; that is, that Attorney A’s former purchasing
clients are not the same as Attorney B’s land-owning adverse parties. In recent LEO 1788, the
Committee addressed a situation in which an attorney currently represented a widow as
administrator of the wife’s estate who now wanted the attorney to represent him in electing his
statutory share as surviving spouse because the will left him nothing. The question presented
was whether this new representation triggered a Rule 1.7 conflict between two current clients-the
administrator and the surviving spouse. The Committee concluded that it did not. The basis for
that conclusion was that the attorney did not have two clients; he had one client with two needs:
legal advice regarding his role as administrator and legal advice regarding his rights as a
surviving spouse. The opinion provides authorities for the proposition that representing a
fiduciary, such as an administrator or a trustee, is representation of that individual regarding that
particular role. See LEO 1788 (and authorities referenced therein).
This same analysis applies for determining whether the three trustees count as “former clients”
for Rule 1.9 purposes. Accordingly, just because the landowners now hold the land as trustees
rather than outright does not in some way render them something other than “former clients” of
Attorney A, which are then via Rule 1.10 imputed to Attorney B. That the purchasers/trustees
were formerly clients of Attorney A and are now adverse parties in Attorney B’s case means that
Attorney B must determine whether the two matters are substantially related before proceeding.
Thus, the element of the trust in this scenario does not remove Attorney B’s new case from the
reach of Rule 1.9.
4) Attorney B has not reviewed the file and was not at the firm at the time of A’s representation
of the purchasers.
The fact that Attorney B has not reviewed the file would be relevant if Rule 1.9 conflicts could
be “cured” by development of a screen for Attorney B regarding this matter. However, Rule 1.9
does not permit a screen to “cure” a conflict triggered by the rule; only consent from the former
client can provide that “cure” and allow the representation. Therefore, the Committee opines
that Attorney B’s lack of familiarity with the file is insufficient to remove this situation from the
reach of Rule 1.9.
In this fourth factor is also the suggestion that because Attorney B was not at the firm at the
time of Attorney A’s representation of the purchasers, the potential conflict should not be
imputed to Attorney B. That suggestion could only be based on a misreading of Rules 1.10(a),
which, to review, operates in the present scenario as follows: Attorney A would have a potential
conflict of interest were he to represent the landowner suing his three former clients;
accordingly, if Attorney A cannot represent the new clients, neither could any other attorney
associated in a firm with Attorney A, including Attorney B. Thus, whether Attorney B was
present at the firm at the time of the first representation at issue is not part of the analysis; what is
important is that Attorney A and Attorney B are in the same firm at the time of the new
representation.
The Committee opines that this fourth posited factor does not remove this scenario from the
reach of Rule 1.9
5) The trustees’ attorney has failed to respond to Attorney B’s inquiry about the matter.

The suggestion made with this reason is that, while recognizing that consent from the former
party is required to “cure” a Rule 1.9 conflict, perhaps after some amount of time or some
number of requests, an attorney may treat silence as consent. Rule 1.9 contains no language
providing that a default alternative to actual consent would be constructive consent where the
attorney has made a reasonable effort to seek consent from the former client. The only “cure” for
a Rule 1.9 conflict of interest is for the former client to provide actual “consent after
consultation.” That the counsel for the three purchasers/trustees has not responded to the
Attorney B’s requests provides no safe harbor for Attorney B if the facts of this case constitute a
conflict of interest.
In sum, this Committee opines that the scenario as presented is just the sort of new
representation that a lawyer should analyze under Rule 1.9(a). The Committee declines to
definitively conclude whether there is a conflict of interest under that provision because, as
indicated with regard to item 2, above, the determination of whether the matters are
“substantially related” must depend on both the factors identified in that discussion and facts
regarding the matters that are not before the Committee.
Finally, the Committee notes that even if the facts support that no conflict of interest is
triggered by Rule 1.9(a), Lawyers A and B also need to consider the possible application of Rule
1.9(c), which states as follows:
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter:
(1) use information relating to or gained in the course of the
representation to the disadvantage of the former client except as Rule 1.6
or Rule 3.3 would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as Rule
1.6 or Rule 3.3 would permit or require with respect to a client.
Thus, regardless of the outcome of the Rule 1.9(a) determination outlined above, if Attorney A
received any confidential information during the representation of the purchasers/trustees at the
time of purchase that would be pertinent in Attorney B’s representation against those parties in
the new matter, then, as Rule 1.9 and Rule 1.10 together impute the effect of that information
form Attorney A to Attorney B, Attorney B could not represent the neighboring landowner,
absent consent from X, Y, and Z. Whether Attorney A received such information is a factual
determination that the Committee cannot make based on the limited facts provided in the
hypothetical.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
September 20, 2004