Bar Counsel Notes: Confidentiality of Information: Former Clients File
Attorney A has been contacted by a minor boy who wants to file a petition for emancipation. His parents were never married and are currently separated. Father has sole parental rights and a protection order issued against mother. Attorney A had previously shared office space with Attorney B during a time period when B had represented mother on criminal charges. Although A never directly represented mother, on a contractual basis Attorney A assisted and advised Attorney B on some issues related to mother's criminal matter. As a result, does Attorney A have a former client conflict of interest if she undertakes this current new representation of the minor?
Maine Bar Rule 3.4(d)(1)(i) is the applicable rule. From these facts, it appears - but Attorney A needs to be sure to confirm - that the new representation is not "substantially related to the subject matter" of Attorney B's former criminal representation of mother. Thereafter, the issue Attorney A needs to be concerned about is whether she obtained or reviewed any of mother's confidential information that may in any way be involved with the minor's petition for emancipation. Assuming Attorney A satisfies herself on that point, then she has no conflict. However, if Attorney A believes any previously obtained confidential information might be relevant or usable in the minor's new matter, she cannot take on that matter without first obtaining informed written consent from mother (through her current attorney).
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.