The Former Client's Waterfront Easement
Attorney Elena has represented Tasi Properties for six years, including a 2019 lease dispute with neighboring Guma LLC over a shared driveway. In that matter, Elena reviewed Tasi's leases, internal emails about its cash-flow problems, and a settlement memo stating Tasi could not afford a long trial. Now Guma wants Elena to represent it in a new dispute with Tasi over an easement across the same driveway. Guma's managing member is Elena's cousin. Elena's current firm, where she is a partner, also handles title work for Tasi; Elena is not involved in that work. Guma asks Elena to take the case and offers to sign a conflict waiver. The firm has an ethical screen available and says it can wall Elena off from the title work. Tasi has not been asked for consent.
1. Does Elena have a former-client conflict under Rule 1.9?
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Yes, likely a substantial one. Rule 1.9(a) bars a lawyer from representing a new client in a matter substantially related to a former client's matter if the new client's interests are materially adverse to the former client, unless the former client gives informed consent. Elena represented Tasi for six years and worked on the same driveway dispute. She learned Tasi's lease terms, cash-flow problems, and settlement posture. The new easement dispute involves the same driveway and the same property interests, so the matters are substantially related. Guma's interest is directly adverse to Tasi. Elena's possession of confidential financial and strategic information could be used against Tasi, even if she does not consciously use it. The cousin relationship does not cure the conflict; it adds a personal-interest dimension.
2. What about the current-client conflict at Elena's firm, and can a screen cure it?
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The firm currently represents Tasi in title work. Under Rule 1.7, a lawyer may not represent a client if the representation will be directly adverse to another current client, or if there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client or a third person. Guma's new case is directly adverse to Tasi, a current firm client. That conflict is generally nonconsentable when the firm would be attacking its own client's title. A screen does not cure a current-client conflict; screens are used for imputed former-client conflicts under Rule 1.10, not to avoid direct current-client adversity. The firm must either decline Guma, withdraw from Tasi with consent, or obtain informed consent from both if the conflict is consentable, which is unlikely here.
3. Can Guma's waiver or Elena's screen solve the problem?
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No single waiver does. Tasi has not consented, and its consent would be required for the former-client conflict; Guma's waiver only speaks for Guma. For the current-client conflict, both Tasi and Guma would need to give informed consent, confirmed in writing, and the lawyer must reasonably believe competent and diligent representation is possible. Because the firm would be litigating against its own client over the same driveway, that belief is hard to sustain. An ethical screen might protect against imputation of Elena's former-client conflict if the firm were otherwise clear, but it does not solve the direct adversity to Tasi. The safest course is for Elena and her firm to decline Guma's representation and refer Guma to independent counsel.