Legal Memorandum: Disqualification of an Attorney in VI

Issue: What role does the passage of time play in determining whether a conflict of interest merits the disqualification of an attorney?

Area of Law: Ethics & Professional Responsibility
Keywords: Disqualification of an attorney; Conflict of interest; Passage of time
Jurisdiction: Virgin Islands
Cited Cases: 145 Cal. App. 4; 211 W. Va. 423; 388 Md. 526; 880 A.2d 322
Cited Statutes: Rule 1.9
Date: 11/01/2007

The court in State ex rel. Ogden Newspapers, Inc. v. Wilkes, 211 W. Va. 423, 566 S.E.2d 560 (2002) found it important that a significant length of time had passed between the earlier representation and the present matter.  They quoted at length from an earlier case in which impact of the passage of time was discussed.

Changes occurring during the interval between earlier and later representations is not a matter specifically addressed in Rule 1.9 or its commentary.  However, as observed by one authority addressing the passage of time with regard to the substantial relationship question,

[t]reating all former representations equally … clearly threatens over‑inclusive application of the substantial relationship standard because we can be fully confident in some instances that the presumed threat of disclosure of material and confidential information gained in that representation is factually unfounded…. [E]ven if facts are remembered with acute and abundant detail (perhaps because they are contained in surviving documents), the passage of time often will decrease or destroy the relevance of those facts in the latter representation.  Intervening happenings and other facts will slowly erode whatever salience might originally have attached even to the former client’s inner‑most secrets….  [O]ld information may continue to be secret and thus subject to a broad duty on the part of the lawyer not to reveal or use it adversely. But if the old information is not realistically relevant to the later representation, its presumed possession should not lead to […]


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