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In re Carey11/26/2002
ich that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation . . . .
It is not disputed that respondents Carey and Danis formerly represented the Chrysler Corporation, nor is it disputed that respondents' representation of the plaintiffs against Chrysler in Beam was materially adverse to Chrysler. The only issue presented is whether the Beam case was "substantially related" to Carey's and Danis' previous defense work for Chrysler.
"Gallons of ink" have been consumed by those trying to articulate or explain the test for deciding whether a substantial relationship exists between two representations. ABA/BNA Lawyer's Manual on Professional Conduct, 51:215. See also Chrispens v. Coastal Ref. & Mktg., Inc., 897 P.2d 104, 111 (Kan. 1995). The "substantially related" test was first announced in T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953). In announcing the rule, the court was primarily concerned with preserving client confidences and avoiding conflicts of interest. T.C. Theatre, 113 F. Supp. at 268-69. The court said: It would defeat an important purpose of the rule of secrecy -- to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client's private interest, require rigid enforcement of the rule against disclosure. No client should ever be concerned with the possible use against him in future litigation of what he may have revealed to his attorney. Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. The rule prevents a lawyer from placing himself in an anomalous position. Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. Lawyers should not put themselves in the position "where, even unconsciously, they might take, in the interests of a new client, an advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged relationship." In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the later representation within the prohibition . . . . Id. at 269. (Citation omitted).
Other courts have also commented on the rule's purpose: It is a prophylactic rule to prevent even the potential that a former client's confidences and secrets may be used against him. Without such a rule, clients may be reluctant to confide completely in their attorneys. Second, the rule is important for the maintenance of public confidence in the integrity of the bar. Finally, and importantly, a client has a right to expect the loyalty of his attorney in the matter for which he is retained. Kaselaan & D'Angelo Assoc., Inc. v. D'Angelo, 144 F.R.D. 235, 239 (D.N.J. 1992) (citing In Re Corn Derivatives Antitrust Litig., 748 F.2d 157, 162 (3d Cir. 1984)).
Important policies behind the rule include the promotion of "fundamental fairness . . . by prohibiting an attorney from using an informational advantage gained in the course of a former representation, the desire to promote client disclosure of all pertinent information . . . , and the desire to p
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