Material Adversity

Material Adversity

Rule 1.9(a) reaches a new engagement only when the new client's interests are "materially adverse to the interests of the former client."¹ The first two elements ask who the former client is and how the new matter connects to the old one; this third element asks what the new engagement would do to the former client.

Two features of the inquiry fix how it works. The comment to Florida's version of the rule borrows its yardstick from the concurrent-conflict rule: "The principles in rule 4-1.7 determine whether the interests of the present and former client are adverse."² And the comparison looks backward. The question is whether the new client's position is materially adverse to the former client's interests in the matter on which the lawyer represented the former client.³ A court therefore reconstructs the old work first and then asks whether the new engagement works against it.

The two words of the phrase do different jobs. "Adverse" ties the element to the old matter: the new client must stand to gain at the former client's expense there. "Materially" implies that adversity must amount to more than a trivial or incidental effect, but the rule's text does not say where that threshold lies. The comment's illustrations therefore carry most of the teaching.

The Clear Cases

The comment gives two illustrations. A lawyer could not properly seek to rescind, for a new client, a contract the lawyer drafted for the former client. A lawyer who prosecuted an accused person could not properly represent that person in a later civil action against the government concerning the same transaction.⁴ In the rescission example, the new client asks a court to undo the document the former client obtained from the lawyer, so the new client's gain is the former client's loss. The prosecution example reaches the same result from another direction: the lawyer acted for the government in the criminal matter, and the accused's civil action seeks relief from the government over the same events.

Drafting work produces the same pattern in general form. A lawyer who represented a client in drafting a contract or will cannot later represent another person in challenging the legality or efficacy of that document, or in contesting the former client's conduct under it.⁵

A trademark dispute shows adversity operating with no threat to confidences. A lawyer had obtained protection for a trademark belonging to a family business. In later trademark infringement litigation, the lawyer argued that the trademark was invalid, and the opposing family group objected that the lawyer had secured that protection while working for them. The court held that by attacking his own earlier work for the former client, the previously unified family business, the lawyer breached a duty of loyalty. Confidential information was not at issue, because the family members and their entities had shared information during the time of harmony.⁶ The attack on the lawyer's own earlier work was itself the injury.

Estate Planning at the Edges

Estate planning supplies a pair of outcomes that mark the ends of the range. One court reprimanded a lawyer who had drafted wills for a husband and wife and then represented the husband's estate against the wife's claim to an elective share.⁷ The wife was a former client, and the estate's position was aimed squarely at her claim. Another court held that a lawyer who drafted a will could properly advise the testator's widow of her right to an elective share.⁸ As reported, the two decisions mark the ends of a range and do not fix the line between them. They do point to the variable that matters. Telling a widow about a right she already holds is a different act from representing the estate in resisting her claim, because only the second sets the lawyer against a person the lawyer once represented.

The estate lawyer's position carries a further caution. The attorney for the estate may feel an obligation to preserve the testator's estate plan, so the surviving spouse may be better served by independent counsel. If the spouse has none, the attorney should observe Model Rule 4.3: in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.⁹

Two Questions

One court framed the test as a pair of questions. The first asks whether accepting the new retainer will require the lawyer, in forwarding the new client's interest, to do anything that will injuriously affect the former client in any matter in which the lawyer formerly represented that client. The second asks whether the lawyer will be called on, in the new relation, to use against the former client any knowledge or information acquired in the former relationship.¹⁰ The first question is the adversity element, because it asks about injury to the former client in the old matter. The second is the confidentiality concern that drives relatedness. The same facts often answer both, but the questions stay distinct. A student who answers only the second has not decided whether the new client's position is adverse at all.

Keeping the Elements Apart

The usual exam error is to let one element stand in for the other. A student concludes that a lawyer who handled the same matter must be barred, or that a lawyer who now opposes a former client must be barred, without checking the second element. Both must be present.

The opposite pairing fails on the other element. Suppose a lawyer who closed a stock purchase for a manufacturer is later asked by a landlord to sue the manufacturer for unpaid rent, and the rent dispute has no connection to the stock purchase. The landlord is hostile to the former client, but the new matter is not the same as, or substantially related to, the old one. Rule 1.9(a) does not apply.

The second step does most of the work on an exam. A stem often states the new client's goal in a single sentence and leaves the student to see who loses if that goal is reached. Consent, taken up in the next section, is the rule's only exception once both elements are satisfied.