Note that the Rules of Professional Conduct were substantially revised in 2006. The language and citations in any Advisory Opinion issued prior to this date may not be consistent with the current rules.
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Potential conflict of interest
The inquirer presented the following factual situation: Client L was represented by a member of a law firm a few years ago as a plaintiff in a construction defect case related to her home. Representation was ended prior to trial. The law firm now represents client R in an encroachment claim involving a different parcel of real property that L is developing on property adjacent to R’s property. It is alleged that L has built an encroaching driveway and damaged some of R’s trees. The law firm states that it has not retained files from the construction defect matter and that the lawyer who represented L “does not have any relevant confidences or secrets, damaging or otherwise,” to share with the firm’s current lawyer representing R.
The inquirer asks if RPC 1.9 precludes representation of R?
It appears from the facts as presented that the two cases are not the same or substantially related; thus the firm’s representation of R does not run afoul of RPC 1.9. In addition, RPC 1.9(b) prohibits using any confidence or secret relating to the representation to the disadvantage of the former client.