Legal Memorandum: Duties to Former Clients

Issue: Under the laws of the U.S. Virgin Islands, when should a court disqualify an attorney from participating in a lawsuit?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Attorney-client relationship; Former representation; Materially adverse
Jurisdiction: Federal, Virgin Islands
Cited Cases: 949 F. Supp. 305; 886 F. Supp. 1204; 748 F.2d 157; 154 F. Supp. 2d 861
Cited Statutes: Model Rule 1.9(a) of the ABA Model Rules of Professional Conduct
Date: 11/01/2007

Model Rule 1.9(a) of the ABA Model Rules of Professional Conduct, which has been adopted in this jurisdiction, Bluebeard’s Castle, Inc. v. Delmar Mktg., Inc., 886 F. Supp. 1204, 1206-07 (D.V.I. 1995), provides, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of a former client unless the former client consents after consultation.”  The Court of Appeals for the Third Circuit has explained that Rule 1.9 not only helps to prevent a former client’s confidences from being used against him or her, but also helps to maintain “public confidence in the integrity of the bar.”  In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 162 (3d Cir. 1984) (disqualifying counsel because, apart from appearances, “it would be unfair . . . to permit [counsel] to use against its former client the information about the strengths and weaknesses of the case gained from the [former] representation.”  Id. at 162.

Application of this Rule requires a two-part analysis:  (1) a determination whether there was an attorney-client relationship, and, if so, (2) whether there is a substantial relationship between the earlier representation and the present litigation.  Bluebeard’s, 886 F. Supp. at 1207.  The second determination itself has three parts:  an examination of “(1) the nature and scope of the earlier representation; (2) the nature of the present lawsuit; and (3) the possibility that the […]

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