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In re Carey11/26/2002
romote confidence in the integrity of the judicial system." Columbus Credit Co. v. Evans, 613 N.E.2d 671, 676 (Ohio Ct. App. 1992).
There are three primary tests for substantial relationship used throughout the country. See Chrispens, 897 P.2d at 111. The first approach compares the facts of the former and current representations. Id. The second approach, which has not been widely adopted, insists that the issues involved in the two representations be identical or essentially the same. Id. The third approach, developed by the Seventh Circuit Court of Appeals, blends the fact and issue comparisons into a three-step test. Id. The Seventh Circuit test states: isqualification questions require three levels of inquiry. Initially, the trial judge must make a factual reconstruction of the scope of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters. Finally, it must be determined whether that information is relevant to the issues raised in the litigation pending against the former client. Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir. 1978).
The test "does not require the former client to show that actual confidences were disclosed. That inquiry would be improper as requiring the very disclosure that [MRPC 1.9(a)] is intended to protect." Chrispens, 897 P.2d at 112.
Missouri addressed substantial relationship in State v. Smith, 32 S.W.3d 532 (Mo. banc 2000). Our approach is consistent with that set out in Westinghouse and Chrispens, combining an analysis of both the facts and issues in determining substantial relationship. In Smith we said that the court "employs a focused approach, where the court examines the relevant facts of the case in order to determine whether the various matters are substantially related." Smith, 32 S.W.3d at 543. " hether there is a 'substantial relationship' involves a full consideration of the facts and circumstances in each case." Id. at 542 (citations omitted). "The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question." Rule 4-1.9 cmt. The key to the analysis is whether there was a central issue common to both representations. Smith, 32 S.W.3d at 542-43.
The fact that a lawyer has previously represented a client does not automatically preclude the lawyer from opposing that client in a later representation. The court must determine whether confidential information acquired in the course of representing the former client is relevant to the issues raised in the current litigation. Chrispens, 897 P.2d at 111. "The 'appearance' of impropriety must be more than a fanciful possibility. It must have a rational basis." McCarthy v. John T. Henderson, Inc., 587 A.2d 280, 283 (N.J. Super. Ct. App. Div. 1991). The court's conclusion must be based on a close and careful analysis of the record. Id. Without such an analysis, the test serves "as a substitute for analysis rather than a guide to it. It is easier to find 'doubt' than to resolve difficult questions of law and ethics." Id. (citing Realco Services, Inc. v. Holt, 479 F.Supp. 867, 872 n.4 (E.D. Pa. 1979)).
Chrispens offers a short, non-exclusive list of six factors that courts following the Seventh Circuit approach have considered in determining whether a substantial relationship exists. See Chrispens, 897 P.2d at 112. The factors include: (1) the case involved the same client and the matters or transactions in question are relatively interconnected or reveal the client's pattern
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