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Do You Have a Conflict with a Former or Prospective Client Under Rules 1.9 or 1.18 - A New ABA Opinion Provides Much Needed Guidance

By Jennifer Naber posted 02-25-2021 15:45


In its Formal Opinion 497, issued on February 10, 2021, the ABA addresses what it means to be “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter under ABA Model Rules 1.9 and 1.18. ABA_Formal_OPinion_497_Material_Conflicts_of_Interest.pdf This opinion provides helpful guidance to navigate those thorny potential conflict issues that arise in all our practices regardless of practice area, including obtaining waivers of conflicts. As succinctly summed up in the conclusion of the Opinion:

   "Material adverseness” under Rule 1.9(a) and Rule 1.18(c) exists where a lawyer is negotiating or litigating against a former or prospective client or attacking the work done for the former client on behalf of a current client in the same or a substantially related matter. It also exists in many but not all instances, where a lawyer is cross-examining a former or prospective client. “Material adverseness” may exist when the former client is not a party or a witness in the current matter if the former client can identify some specific material legal, financial, or other identifiable concrete detriment that would be caused by the current representation. However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client’s interests suffices."

This is a must read for any attorney

Jennifer A. Naber
Laner Muchin, Ltd.
515 North State Street, Suite 2800
Chicago, IL 60654-4688
Telephone:  (312) 467-9800