The State Bar Association of North Dakota Spring 2014 Gavel Magazine | Page 37

multiple clients in a matter represent one
of the clients against the others in the
same or a substantially related matter
after a dispute arose among the clients in
that matter, unless all affected clients give
written consent.”
Attorney suggests that his representation
of Wife and Husband in their estate
planning and child support is not
substantially related to the present action
to recover money. Rule 1.9 comment 3
provides a very helpful description and
example of “substantially related,” it states
in part:
Matters are “substantially related” for
purposes of this Rule if they involve the
same transaction or legal dispute or if
there otherwise is a substantial risk that
confidential factual information as would
normally have been obtained in the prior
representation would materially advance
the client’s position in the subsequent
matter. For example, a lawyer who has
represented a businessperson and learned
extensive private financial information
about that person may not then represent
that person’s spouse in seeking a divorce.
Rule l .9(b)(1) prohibits a lawyer from
representing a party in the same or
substantially related matter if a client
has previously been represented whose
interests are materially adverse to that
person. The prosecution of one party
for stealing money from another party
explicitly displays material adversity.
Attorney represented Wife in appointing
Wife and Husband as POA, the
prosecution of the wrongful use of that
POA can also be deemed substantially
related. Because the matter is substantially
related, Rule 1.9(c)(l) prohibiting an
attorney from using information gained
from prior representation against the
former client applies. During Attorney’s
representation of the parties he has gained
very valuable information, specifically
information regarding finances and
holdings of both parties. This information
obtained by Attorney would very likely
result in a serious disadvantage for Wife
and Husband should a judgment need
collection. Information obtained during
prior actions would be very useful to

Attorney in prosecution in the present
action, and therefore be in violation of
Rule 1.9.
Also, Rule 1.7 (a) states “[a] lawyer shall
not represent a client if the lawyer’s ability
to consider, recommend, or carry out a
course of action on behalf of the client
will be adversely affected by the lawyer’s
responsibilities to another client or to
a third person, or by the lawyer’s own
interests.” Further, Rule 1.7 (c):
[a] lawyer shall not represent a client if
the representation of that client might
be adversely affected by the lawyer’s
responsibilities to another client or
to a third person, or by the lawyer’s
own interests, unless: (1) the lawyer
reasonably believes the representation
will not be adversely affected; and (2)
the client consents after consultation.
When representation of multiple clients
in a single matter is undertaken, the
consultation shall include explanation
of the implications of the common
representation and the advantages and
risks involved.
As discussed above, Attorney’s
representation of Aunt would be adversely
affected by his responsibilities to Wife and
Husband due to the sensitive financial
obtained in representation of all the
parties.
Furthermore, if Wife and Husband are
charged criminally there is a very likely
chance that Attorney could be called as a
witness because he created the relationship
of Wife and Husband as POA. The issue is
further complicated in that Attorney still
has an ongoing attorney-client relationship
with Wife and Husband and an attorney
cannot be compelled to testify against a
client. The attorney-client rela ѥ