Thursday, April 6, 2017

Job Tips: RPC 1.9 Duties to Former Clients

Las Vegas is a relatively small legal market, made even smaller when you break it down to individual areas of practice. This can create a bit of an issue when a young associate decides to look for employment elsewhere and the only jobs she is qualified for are in the same practice area.  Inevitably, her new firm will end up with a case against a former client of a previous firm and then you have to decide whether she has to be screened off or she can work on the file. The big problem stems from Nevada Rules of Professional Conduct Rule 1.9:
  Rule 1.9.  Duties to Former Clients.
      (a) A lawyer 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.
      (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
             (1) Whose interests are materially adverse to that person; and
             (2) About whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
             (3) Unless the former client gives informed consent, confirmed in writing.
      (c) A lawyer 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.
For those of you who struggle with this conundrum, the Supreme Court of Nevada has decided to lend you a helping hand in the form of an opinion issued today in New Horizon Kids Quest III, Inc. v. Eighth Judicial District Court, Case No. 69920. The Court held that "an attorney who was not directly involved in a law firm's representation of a client cannot be imputed with actual knowledge of confidential information once that attorney resigns from employment with that firm." Id (quoting Edwards v. 360 Communications, 189 F.R.D. 433, 436 (D. Nev. 1999)).

With that in mind, do any of you have any other tips for dealing with conflicts that arise with former clients? Any landmines to avoid? Any war stories? Any advice?

33 comments:

  1. When possible, try and avoid a conflict. Most clients are not going to be too happy getting a bill for work done to stay on a case when there is the allegation of disqualification. There are other fish in the big Clark County sea but the opinion is helpful in my opinion. I graduated from Boyd but not that retarded 2013 class.

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    1. Read the appellate pleadings. The opinion makes the record look much cleaner than it apparently was. Jordan Schnitzer did participate in various ways in the Blue case; he just did not obtain confidential information while doing it. While would raise a question for me as a client-- how could you claim to be doing attorney work but not get any information about the case? Were you just a warm body or were you an empty suit?

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    2. Fungible Billing Unit.

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    3. The decision really elevates the interest of the attorney above the interest of the client. It appears there was no question that the matters involved were substantially related - which the court seems to have chosen to treat as a minimal concern. So rather than look at it from the client's perspective ("How do we know whether the attorney gained confidential information, and why should we have to rely upon a self-serving statement that no confidential information was obtained?"), this panel chose to look at it from the attorney's "But I've got to be able to move freely in the legal field" perspective. One would imagine that the negative public perception about lawyers only looking out for lawyers would have provided an impetus for the court to look at things from the client's perspective. But then again, should we have expected a different result from this court?

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    4. 1030,the lawyers at HJC said he did not work on the file. Just because Felicia claims he worked on the file does not make it true. I would believe the partner on the case. Granted HJC is suspect at times.

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    5. 11:45, the underlying briefs don't argue that the associate worked on the file. That doesn't appear to have been the issue. Rather, the issue appears to have been whether the associate had access to confidential information which HJC obtained. If you are not a solo practitioner is it reasonable to assume that attorneys within a firm talk to one another about their cases without actually deeming themselves as "working" on those cases? That appears to have been the concern.

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    6. WHO YOU PEOPLE that have time to review the underlying briefs on a Supreme Court decision that's already been litigated? I waste enough time just coming here to read the comments on the articles.

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    7. Considering HCJ uses unsecured Windows folders as their filing system, he absolutely had access. The question is whether he had actual knowledge. Only actual knowledge will DQ him, as the ABA and now the NSC have said.

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    8. Its gotta be the attorneys involved

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    9. Completely shocking and appalling that someone is asking how an attorney can work on a case without it being privileged or work product. Clearly you're a civil defense lawyer.

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    10. 5:37, considering the outrage you express over an issue so far outside the point, you must be a plaintiff PI lawyer. Don't you have a chiropractor to take out to dinner?

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    11. Chumps take chiros out to dinner.

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  2. I keep a spreadsheet, don't rely on your firm's conflict check since the responsibly is with you and travels with you from job to job.

    Once had someone receive our withdrawal in the mail (we represented one ex) and they thought we could represent them since we'd done a good job so far. Ha!

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  3. Easier said than done. The problem arises the most in the construction defect realm where one firm represents the subs and another represents the general and or builder. Then the associate who represents the subs wants to work at another firm. The conflicts claims have slowed down because the work slowed down.

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  4. NSC also ruled that AG is not entitled to be made a party and participate in criminal proceedings where a constitutional challenge is raised under Chapter 30.

    http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40012

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  5. I just love insurance defense firms fighting each other. Good to see insurance defense firm on defense firm crime.

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    1. It's quite common actually, for multiple defendants to have opposing interests.

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  6. I got aroused just seeing the phrase "insurance defense firm on defense firm."

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    1. Haha this is the best comment I've EVER seen on this blog.

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  7. I think of this blog as the kind of thing that everyone reads, but no one really wants to admit to it...

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  8. I know people in the judiciary read it.

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    1. Yeah.. It's kind of like the National Enquirer.. you know it's a train wreck but just can't look away.

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    2. Are you peaking again, Judge Miley?

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    3. Peaking, peeking or piquing? Because I have never seen Miley peek, even when her peaks are no longer piquing curiosity of others to peek.

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    4. Witty! I do wish we had anonymous blog comments on judges. Miley would garner quite a few substantive and hilarious posts.

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  9. So the State Bar has put out its request for its self-laudatory awards. I am nominating that lying shitbag Stan Hunterton for the Presidential Award just to get the chance to discuss how much he lowers and has destroyed the administration of justice and brings dishonor and is working to lower our profession. I just hope the committee will take the time to see the sarcasm.

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  10. Did Kutner essentially win now that http://wildwildlaw.blogspot.com/ is closed? Or does the Wayback website keep it alive? Anyone know why/when it shut down?

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    1. Did you really have to ASK?

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    2. No, Kutner has had his ass handed to him at every turn by Maggie McCletchie and her anonymous client. Check the minutes on A720137.

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    3. so, then why is the WWL blog gone? It was a veritable treasure trove.

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    4. The page still exists in the Wayback machine.

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    5. I got the impression that the person/people who ran WWL just got tired of the BS. It's an expense, a time commitment, and then on top of that you get Askholes suing you? Not worth it.

      But that's just a guess. I have no inside knowledge.

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