Ethics Committee Advisory Opinion #1990-91/1

Conflict of Interest:  Representing Position Adverse to Former Client

November 8, 1990


A government attorney cannot represent the client in a support modification hearing if the government attorney previously represented the opposing party in the original action establishing the support order.  (Rule 1.6(a); Rule 1.7(a); Rule 1.9(a)).

A lawyer must avoid representation against a former client in the same or a substantially related matter, in which the client’s interests are materially adverse to the interests of the former client, unless the former client consents after consultation and with knowledge of the consequences.  (Rule 1.9(a)).

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship to another client; and

(2) each client consents after consultation and with knowledge of the consequences.  (Rule 1.7(a))

A lawyer is prohibited form disclosing information received during the representation of a client (with certain exceptions) unless the client consents after consultation.  (Rule 1.6(a); Rule 1.9(b)).

Government lawyers are covered by the strictures of Rule 1.6 (a).

If a former client’s confidential information is used to that person’s disadvantage, it is a violation of Rule 1.8(b).

A lawyer’s duty of undivided loyalty to a client where there are adverse interests to the client mandates disqualification for conflict of interest.  (Rule 1.7; Rule 1.9).

A lawyer’s duty of confidentiality to a client continues after the end of legal representation.

Client consent to adverse representation should not be sought if a disinterested lawyer would advise the client not to provide such consent.  (Rule 1.7).

There are situations where the interests of the clients are so adverse as to make any disclosure for client consent to adverse representation inadequate under Rule 1.7.

The NH Rules of Professional Conduct apply to all members of a firm the same as to one member of the firm.  (Rule 1.10(a)).


May an attorney, consistent with the Rule of Professional Conduct, make a charitable donation in the form of free consultation, a simple will, etc.?

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