Editor's Note: Refer to Rule 1. 7(a)
CONFLICT OF INTEREST- There is no conflict of interest per se for a lawyer to accept employment to represent a former adverse party if the anticipated representation is not prejudicial to a former client of the prospective client.
The Ethics Committee of the Mississippi State Bar has been asked to render its opinion on the following situation:
In the past the lawyer represented Mr. A against Ms. B and obtained a judgment against Ms. B in a collection suit. Subsequently, the lawyer has been requested to represent Ms. B in a totally unrelated action against Company C. The lawyer advised Ms. B of the fact that he had represented Mr. A against her in the aforementioned suit on the Promissory Note, however Ms. B consented to the lawyer representing her. Additionally, the lawyer advised Mr. A of the fact that he had been approached by Ms. B to represent her in an unrelated matter and Mr. A consented to the representation by the lawyer of Ms. B in the unrelated cause of action.
The ethical question presented is can the lawyer represent Ms. B in an action against Company C notwithstanding the written consent of Mr. A and Ms. B.
The lawyer has made inquiry of this Committee to inquire specifically as to whether or not he would be in violation of DR 5-105(c) of the Code of Professional Responsibility of the Mississippi State Bar.
This is a somewhat narrow situation that has been provided for by DR 5-105(a) and (c) of the Code of Professional Responsibility of the Mississippi State Bar. Specifically, DR 5-105(a) states in full:
A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(c).
DR 5-105(c) of the Code of Professional Responsibility of the Mississippi State Bar states in full:
In the situations covered by DR 5-105(a) and (b), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation on the exercise of his independent professional judgment on behalf of each.
Opinion 90 of the Mississippi State Bar states quite clearly that a lawyer need not disqualify himself in a matter concerning a former client unless the terminated employment has some substantial relationship to the new matter or unless he received privileged information that might be used in the new matter against the former client.
It must be stressed that the factual situation presented by the lawyer clearly reflects that his representation of the former adverse party would be in a matter totally unrelated to his representation of a former client. Further, the lawyer has obtained the informed consent of the former client and the prospective client concerning the anticipated representation.
Therefore, in view of all of the above, the lawyer is required to determine if he can adequately and competently represent the prospective client in view of the fact that this individual had previously been an adverse party in a matter in which the lawyer was involved.
In reviewing EC 5-1, EC 5-2, EC 5-14, EC 5-15, EC 5-16, EC 5-19, and EC 5-21, if the lawyer and the prospective client determine that the lawyer will exercise his professional judgment within the bounds of the law, solely for the benefit of the prospective client and will be free of compromising influences and any possible prior prejudices against the prospective client, then this Committee determines that the lawyer will not be in conflict with Canon 5 of the Code of Professional Responsibility of the Mississippi State Bar.