A lawyer previously represented 'GreenThumb Landscaping' in drafting its standard employment contracts five years ago. The lawyer now represents 'EcoGardens,' a competing landscaping company, which is being sued by a former GreenThumb employee for wrongful termination, alleging a breach of the very employment contract the lawyer drafted. What is the lawyer's ethical obligation?
- AThe lawyer may represent EcoGardens if the lawyer did not gain confidential information relevant to the current suit.
- BThe lawyer may represent EcoGardens as the previous representation was five years ago and is not current.
- CThe lawyer may represent EcoGardens if GreenThumb consents to the representation.
- DThe lawyer must decline to represent EcoGardens because the matters are substantially related.
Show answer & explanationAnswer & explanation
Correct answer: D. The lawyer must decline to represent EcoGardens because the matters are substantially related.
The lawyer previously represented GreenThumb in drafting the employment contracts, and now EcoGardens is being sued based on that same type of contract. This constitutes a 'substantially related matter,' triggering the lawyer's duty to a former client. The lawyer cannot use information gained from the prior representation to the disadvantage of GreenThumb.
Why the other options are wrong
- A. It is presumed that the lawyer gained relevant confidential information when drafting the contracts, even if not explicitly stated. The 'substantially related' test often implies possession of such information.
- B. The passage of time (five years) does not negate the 'substantially related' test for former client conflicts. The key is the relationship between the matters, not just time.
- C. While consent can sometimes cure a former client conflict, it's not the primary answer here without first establishing substantial relatedness. The core issue is the conflict, not just consent.
Duties to Former Clients (Substantially Related Matters)
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 the former client gives informed consent, confirmed in writing.
- Focuses on the relationship between the current and former matters.
- Matters are substantially related if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.
- Protects against using confidential information gained in the prior representation to the detriment of the former client.
Memory trick: Remember the old client's secrets if the new case is similar.