The US take on past client / current client duty conflicts based on the ‘getting to know you factors’

America’s Legal Profession Blog had posted yesterday on a conflicts case about what we in Australia would call “the getting to know you factors”. The case was Hurley v Hurley, decided on 22 May 2007 by a 5 judge bench of the Maine Supreme Judicial Court. The background is that a lawyer may be prevented from acting against a former client even in a matter unrelated to the earlier retainer and where no specific confidential information was obtained in the earlier retainer which could be put to use against the former client in the new retainer. A lawyer may be prevented from acting in those circumstances where the earlier retainer or retainers was or were of such an intimate character that the lawyer came to know so much about the former client in a general way that it would be unjust to let them loose on a former client’s opponent.

The seminal case is probably Yunghanns v Elfic Ltd, a 3 July 1998 decision of Victoria’s Supreme Court’s Justice Gillard. (The rule does not apply, in general, to barristers acting against institutional litigants such as insurance companies and banks for whom they have acted in the past: Mintel International Group Ltd v Mintel (Australia) Pty Ltd [2000] FCA 1410 at [43] to [44]). In the American case, one personal injury retainer, in which the lawyer gained insights into the former client’s ‘ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney’ was sufficient to disentitle him from acting against her in a contested divorce. Now, that post in full:

‘Undivided Loyalty

The Lawyers’ Manual on Professsional Conduct has a report on a recent decision of the Maine Supreme Court that provides an interesting analysis of the ethical duties owed to a former client under Rule 1.9. The attorney had represented a client in an accident case that lasted over two years and was settled on the day of jury selection. The lawyer is the cousin of the client’s husband. When she asked him to represent her in a prospective divorce action, he declined. She proceeded with a different lawyer. The husband then retained the lawyer-cousin, which resulted in a disqualification motion.

The court affirmed the trial court’s disqualification order. Not only had the lawyer received confidential information about the former client’s medical history, but “also acquired information about the way in which [she] handled the litigation process.” The insights concerning her “ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney…would be detrimental to her interests in another litigation, particulary in a contentious divorce action ” and justified disqualification. (Mike Frisch)’

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