Wednesday, April 29, 2009

Entry #5 - Careless answer

I must remind myself every so often about what I had learned in high school math, never be careless and always be careful of a seemingly simple question, it can turn out to be tricky.

Here's probably an example in law, a question on legal ethics:

Q: May a lawyer represent a subsequent client in a case against a former client?

A careless answer: No. An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated.

In this question, I think what the examiner is looking for is the examinee's knowledge and understanding of the scope of the rule against representing conflicting interests. My ready answer is that an attorney can represent any client of his choosing as long as no conflict of interests or an appearance thereof arises.

Here's a proposed careful answer: Yes, as long as no conflict of interests or the appearance thereof arises from the representation. Identity of client, though an important consideration, is not sine qua non in the rule against representing conflicting interests. A lawyer is forbidden from representing a subsequent client against a former client only when the subject matter of the present controversy is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client.

Otherwise, there is no confidential information that the lawyer can use to his unfair advantage against a former client in a totally unrelated case. However, prudence dictates that the lawyer should still inform his subsequent client about their adversary being his former client.
He must avoid any suspicion of unfaithfulness or double-dealing in the performance of his duty."

The answer may be too long.

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