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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

Thanks very much, Roy. Twenty minutes is a very short time to talk about a very complicated topic, particularly when, as it turns out, I have to shift gears very quickly. I just gave what I thought was a bit of an impassioned expression of outrage at suing your own client. It will appear shortly that I'm about to defend the proposition that, of course, you may sue your own client. That's perfectly fine under the former client rules. The notion that I'm going to talk about is the substantial relationship "standard" as I call it. Indeed, one of the things that I do in the paper is try to tease out a test for the substantial relationship standard. The test, arose somewhat recently, as law goes, in 1953 in the T.C. Theatres case. In it, Judge Weinfeld, somewhat unusually set the standard followed by the Supreme Court of the United States and the supreme courts of many jurisdictions. It's one of those unusual events in jurisprudence. It's also unusual because there wasn't anything terribly new about what Judge Weinfeld was holding. What was appealing was just the nice turn of phrase, the "substantial relationship" test.

The substantial relationship test is now built into the law of, I think, every jurisdiction except, sure enough, California-always doing its own thing in professional regulation. In the 1983 model rules, Rule 1.9, of course says right there in the rule that substantial relationship is the standard for determining whether or not there is a former client conflict. It has become so universal that I think that explains one of the most amazing phenomenon that I discovered in doing research on this. There are two or three student works, but a law professor to this date has never written about the substantial relationship test. Maybe I'm about to indicate why that is. Maybe it's entirely too vacuous a subject, too simple a subject. I am more likely to prove that it's so complex a subject that you can get it very badly wrong very quickly, which I will try to do in the next couple of minutes.

What I'm going to try to do in the time that I have available is to talk, first of all, about theory. It turns out to be quite important, I think. My chief theoretical problems are, first of all, to investigate the confidentiality basis for the substantial relationship standard. It's easy, but it turns out to be a somewhat limiting set of considerations.

Secondly, I want to go on to ask whether there's anything beyond confidentiality that the substantial relationship standard seeks to protect. To look ahead, I indicate that in fact, and we've done this in the Restatement, there's an additional area that's worthy of protection that we have called the attack your own work prohibition. You can't attack the work that the lawyer did for the former client even if the particular attack doesn't expose any confidential information. As I'll argue, that's a theoretically interesting but practically irrelevant consideration. I think we are left with confidentiality as the core concept behind substantial relationship, and with this one exception we can put aside the attack-your-own-work limitation, because as a practical matter it hardly ever arises. We are dealing in the end with only confidentiality.

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