The Former Client on the Other Side
You are a paralegal at a three-attorney firm, Calloway & Reed. Attorney Calloway asks you to open a new matter for Meridian Supply Co., which wants to sue its former logistics vendor, Northline Freight, for $85,000 in late-delivery penalties. While running the conflict check, you find that Calloway represented Northline three years ago in a contract dispute with a different customer over nearly identical delivery terms; that matter closed 18 months ago, and Calloway personally reviewed Northline's internal delivery-scheduling manual and interviewed its operations manager. Calloway says, "That was a different case and a different customer-just run the new client through and draft the engagement letter." Northline is not a current client. The new matter would be handled by a different attorney in the firm, and you could screen Calloway. Meridian's deadline to file is in 10 days. The firm has no written conflicts policy and no database note beyond the closed-file name.
1. Is Attorney Calloway personally disqualified from the Meridian matter under Model Rule 1.9? Explain the test and apply it.
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Rule 1.9(a) prohibits a lawyer who has formerly represented a client in a matter from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing.
Northline is a former client. The new matter is adverse: Meridian seeks $85,000 from Northline. The key issue is substantial relationship. The prior matter involved a contract dispute over nearly identical delivery terms; Calloway reviewed Northline's internal delivery-scheduling manual and interviewed its operations manager. Those materials are likely confidential and could be used to Northline's disadvantage in the new late-delivery dispute. Even though the customer is different, the factual and legal issues overlap significantly. Under Rule 1.9(c), Calloway may not use or reveal that confidential information.
Therefore, Calloway is personally disqualified absent Northline's informed consent. The fact that the prior matter closed 18 months ago does not remove the duty; the confidentiality duty continues. I would advise that Calloway cannot work on or discuss the Meridian matter.
2. Can the firm cure the conflict by screening Calloway? Identify the rule, the conditions, and the practical steps you would take before any engagement letter is signed.
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Under ABA Model Rule 1.10(a)(2), when a lawyer is personally disqualified under Rule 1.9, the firm may nevertheless represent the new client if: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee; (2) written notice is promptly given to the former client (Northline) sufficient to ascertain compliance; and (3) the firm's screening procedures are reasonable. Some jurisdictions have adopted different or stricter rules, so I would check the local version of Rule 1.10.
Screening does not cure Calloway's own disqualification-he still cannot work on the matter-but it can prevent imputation to the firm. Practical steps: document the conflict check; send a written screening memo to all personnel; isolate the Northline file physically and electronically; instruct Calloway not to discuss the matter; confirm no fee share; send written notice to Northline; and obtain a written acknowledgment. Because the firm has no written conflicts policy, I would also recommend adopting one. If the local rule does not permit screening, the firm must decline or obtain Northline's informed consent.
3. Calloway says the new matter is different because the customer is different. Evaluate that reasoning and explain what you should do if Calloway insists on proceeding without screening or notice.
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The reasoning is unsound. The substantial-relationship test does not turn on the identity of the customer; it asks whether the prior and current matters are substantially related and whether confidential information from the former representation could be used against the former client. Here, the same delivery terms, the same internal scheduling manual, and the same operations manager make the matters substantially related. A different customer does not neutralize the risk.
If Calloway insists on proceeding without screening or notice, I should not draft the engagement letter or otherwise participate. I would document the conflict and my objection in writing, escalate to another attorney or the firm's ethics counsel, and, if necessary, decline to work on the matter. Under Rule 5.3, a paralegal's conduct is imputed to the firm, and I cannot assist in conduct that violates the Rules of Professional Conduct. I would also preserve the conflict-check records in case Northline later moves to disqualify the firm.