Attorneys have an ethical duty to avoid representation of clients whose interests are adverse, or where representation of a client may create a conflict of interest.
Two Types of Conflicts
There are actually two Rules of Conduct that address this rule: one deals with two clients who may concurrently have matters that conflict with one another (for example, representing two people in a divorce or two partners in a partnership dispute).
But there is a separate rule that is a bit harder for many attorneys: the rule that prohibits the representation of a client whose interests are adverse to that of another, former, client—that is, conflict with a client whose legal matter has long wrapped up, and where the attorney-client relationship has long ceased to exist.
This is a significant difference. When there is one concurrent matter (like a divorce) where there are two clients, the issue isn’t often whether the matter is similar enough to constitute a conflict of interest—it’s usually obvious that the matter is similar.
However, former cases and clients create some difficulty because the old and new matters may, on the surface, seem different enough (and, in fact, may be completely different lawsuits if litigation is involved).
So how similar is too similar, such that the attorney cannot represent a new client against an old client?
How Similar is Too Similar?
One thing to ask to see if there is a conflict between a current and prior client is whether the matters for both clients are similar enough that a conflict actually exists.
Courts normally will ask whether both cases or matters involved similar facts or legal issues or whether information gathered in the representation of one client in the former matter could help the “new” client in the current matter.
Note that to have a conflict of interest, thus prohibiting a lawyer from representing a client, the lawyer doesn’t actually need to have obtained confidential information or used the confidential information. The ARDC and the professional rules of conduct in Illinois consider it to be a conflict so long as it is reasonable to believe that confidential information could have or would have been shared and used.
If information gathered in the prior representation has relevance in the new, current litigation, there could also be a conflict of interest between past and current clients.
Types of Representation
A conflict can exist, even where the type of representation differs.
For example, if a lawyer draws up a contract for a client and then represents another new client who sues the old client under that same contract, even though one representation was transactional (contract drafting) and the other involved litigation, this would still constitute a conflict of interest.
If you have a problem or issue with the ARDC, or an legal ethical problem, let us help you. Speak with a Chicago attorney discipline attorney at Ellis Legal at (312) 967-7629 today.