MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2024-03
Attorney Obligations Amid Representational Conflicts
In your letter dated March 4, 2024, you requested an opinion concerning additional actions this committee suggests you undertake regarding a conflict arising from a previous client’s involvement in an unrelated investigation under review by your current employer. The Committee on Ethics of the Maryland State Bar Association considered and approved the following as our written opinion on the question you raised.
QUESTION PRESENTED:
1. What are an attorney’s obligations upon learning of a representational conflict?
CONCLUSION:
First, the attorney should determine whether the current role of counsel is materially adverse to the former client. Depending on the answer to this question, additional actions should be taken to comply with the Maryland Attorney Rules of Professional Conduct.
However, in any case of conflict, once the attorney is aware of the conflict, at minimum the following actions should be taken: (1) Inform the current client or employer of the conflict; (2) Inform the former client of the conflict and of the strategy to remedy the conflict.
Additional steps should be taken based on the individualized circumstances of the conflict. This opinion is limited to the facts and circumstances of this matter presented in the letter to the Committee.
BACKGROUND:
You advised that you are an attorney previously employed as a special victims’ counsel for a quasi-government agency. You were subsequently employed by the same employer in a different capacity, as trial counsel. In your role as trial counsel you were assigned to “review an investigation”, where you discovered that the investigation “involved” a former special victim-client. You advised that the current investigation is not related to your previous representation of the former client. Additionally, you advised that prior to seeking the advice of this Committee, you informed your supervisor of the conflict and were removed from the case.
Based on the information in your letter it is not clear to this Committee what role you would have had in the matter. The role and level of interest your former client has in the current matter is also unclear, and all of these considerations would be necessary to determine whether your appearance in the matter was materially adverse to the former client.
DISCUSSION/ANALYSIS:
Maryland Attorneys’ Rules of Professional Conduct 19-301.7(a) states:
(a) Except as provided in section (b) of this Rule, an attorney shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney's responsibilities to another client, a former client or a third person, or by a personal interest of the attorney.
Further, Rule 19-301.9 states in pertinent part:
(a) An attorney 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.
. . .
(c) An attorney who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Given that your employer is a government or quasi government agency, whose clientele and representative capacities are not discretionary in the same manner as those of a private firm or sole practitioner, the Maryland Attorneys’ Rules of Professional Conduct still require that government attorneys adhere to Rule 19-301.9. See Rule 19-301.11(a)(1) . Even with such requirements, the Rules also seem to recognize that government attorneys generally do not have the ability to choose the clients they will represent. Nor can government attorneys reasonably anticipate that a past client will present a representational conflict in a future matter, as is implied by Comment 4 of Rule 19-301.11, which states:
An attorney should not be in a position where a benefit to the other client might affect performance of the attorney's professional functions on behalf of the government. . . . the rules governing attorneys presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified attorneys as well as to maintain high ethical standards. Thus, a former government attorney is disqualified only from particular matters in which the attorney participated personally and substantially.
While the Committee understands, based on your representation, that the current matter is not related to your representation of the former client, it is not clear from the information provided whether the new matter is in anyway directly or materially adverse to the former client, or whether and to what extent the former client is an interested party in the current matter. The answers to these considerations necessarily require additional action. However, since sufficient information for these considerations was not presented to the Committee, the Committee declines to opine on these permutations, but refers your attention to Rule 19-301.9 (b), (c), Rule 19-311 (c), see also Rule 19-301.9 Comments 6, 7, 8, Rule 19-301.11 Comments 4, 5, 7.
The following rules provide guidance on what an attorney should do in instances of conflict. Rule 19-301.7(b) provides:
b) Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if:
(1) the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Rule 19-301.8(b) states:
(b) An attorney shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
More pointedly Comment 5 of Rule 19-301.8 outlines:
Use of information relating to the representation to the disadvantage of the client violates the attorney's duty of loyalty. Section (b) of this Rule applies when the information is used to benefit either the attorney or a third person, such as another client or business associate of the attorney. … The Rule does not prohibit uses that do not disadvantage the client. For example, an attorney who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Section (b) of this Rule prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules.
Based on the rules stated, it follows that in any case, once a conflict is recognized, at minimum the rules require that a conflicted attorney must (1) Notify the current employer of the conflict and the nature of the conflict – which you have already done. (2) Notify the former client through counsel, if represented, of the conflict and of the strategy to remedy the conflict.
It cannot be understated that these are the minimum actions that should be taken when a conflict arises. However, it should be noted that these suggestions are given without the benefit of specific knowledge of the circumstances of the “investigation” and the former client’s involvement in the investigation. This Committee recognizes that the work of government attorneys, especially those belonging to a prosecuting office, may require a certain level of secrecy, where providing notice of the conflict is not prudent under the circumstances. Accordingly, the suggested actions outlined above should be taken to the extent they are applicable and feasible.
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
REFERENCES:
• Rules cited
• 19-301.7
• Comment 2
• Comment 4
• Comment 6
• Comment 8
• 19-301.9
• Comment 4
• Comment 6
• Comment 7
• Comment 8
• 19-301.11
• Comment 4
• Comment 5
• Comment 7