Washington Lawyer - July 2017 - 52

ASK THE ETHICS EXPERTS

The Appearance of Impropriety

Q

I currently represent a client who was distraught to discover
that the lawyer who represented her in her divorce five years
ago currently represents her ex-husband in a dispute with his
business partner. She thinks that the lawyer's representation of
her adversary is disloyal, and I have to agree that it creates at least the appearance of impropriety. Has the lawyer violated any ethical duties by representing my client's ex-husband?

A

The good news is that you are correctly recalling Canon 9 of the
D.C. Code of Professional Responsibility, which called upon
lawyers to avoid "even the appearance of impropriety." The bad
news is that the Code was superseded by the D.C. Rules of
Professional Conduct on January 1, 1991. With the adoption of the D.C. Rules,
the concept of "the appearance of impropriety" was removed from the conflicts rules (though vestiges do remain in Rule 1.11, which applies to lawyers
leaving government positions).

By Erika Stillabower

matter that is the same as or substantially related to a matter in which the
lawyer previously represented a client when the interests of the person are
"materially adverse" to those of the former client. Seemingly unrelated matters
may sometimes be deemed substantially related (see Rule 1.9, Comments [2]
and [3] and D.C. Legal Ethics Opinion 343) because of the Rule 1.6-protected
information a lawyer gains in the initial representation. However, a lawyer may
proceed with such a representation if she has the informed consent of her
client.
Here, in the absence of a substantial relationship between the two matters,
the lawyer's representation of the ex-husband would satisfy his ethical obligations under Rule 1.9, and your client would therefore have no ethical grounds
to object to the lawyer's new representation.
D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower
are available for inquiries at ethics@dcbar.org.

In accordance with the D.C. Rules, the lawyer's representation of your client's
ex-husband would be evaluated under Rule 1.9, the conflicts rule related to
former clients. Rule 1.9 prohibits a lawyer from representing a person in a

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Table of Contents for the Digital Edition of Washington Lawyer - July 2017

Your Voice
From Our President
Calendar of Events
The Bar at 45
Annual Report 2016-17
1970s: Bar Beginnings
1980s: Reagan Reigns, Women Rise
1990s: Re-Envisioning & Expanding
2000s: Strength in the Face of Adversity
2010s: Solidifying the Bar's Future
The Founding of the D.C. Bar
A Conversation with Robert J. Spagnoletti
Attorney Briefs
Ask the Ethics Experts
Disciplinary Summaries
Last Word
Washington Lawyer - July 2017 - Cover1
Washington Lawyer - July 2017 - Cover2
Washington Lawyer - July 2017 - 1
Washington Lawyer - July 2017 - 2
Washington Lawyer - July 2017 - 3
Washington Lawyer - July 2017 - 4
Washington Lawyer - July 2017 - Your Voice
Washington Lawyer - July 2017 - From Our President
Washington Lawyer - July 2017 - 7
Washington Lawyer - July 2017 - Calendar of Events
Washington Lawyer - July 2017 - 9
Washington Lawyer - July 2017 - 10
Washington Lawyer - July 2017 - 11
Washington Lawyer - July 2017 - 12
Washington Lawyer - July 2017 - 13
Washington Lawyer - July 2017 - The Bar at 45
Washington Lawyer - July 2017 - Annual Report 2016-17
Washington Lawyer - July 2017 - 16
Washington Lawyer - July 2017 - 17
Washington Lawyer - July 2017 - 18
Washington Lawyer - July 2017 - 19
Washington Lawyer - July 2017 - 20
Washington Lawyer - July 2017 - 21
Washington Lawyer - July 2017 - 1970s: Bar Beginnings
Washington Lawyer - July 2017 - 23
Washington Lawyer - July 2017 - 24
Washington Lawyer - July 2017 - 25
Washington Lawyer - July 2017 - 1980s: Reagan Reigns, Women Rise
Washington Lawyer - July 2017 - 27
Washington Lawyer - July 2017 - 28
Washington Lawyer - July 2017 - 29
Washington Lawyer - July 2017 - 1990s: Re-Envisioning & Expanding
Washington Lawyer - July 2017 - 31
Washington Lawyer - July 2017 - 32
Washington Lawyer - July 2017 - 33
Washington Lawyer - July 2017 - 2000s: Strength in the Face of Adversity
Washington Lawyer - July 2017 - 35
Washington Lawyer - July 2017 - 36
Washington Lawyer - July 2017 - 37
Washington Lawyer - July 2017 - 2010s: Solidifying the Bar's Future
Washington Lawyer - July 2017 - 39
Washington Lawyer - July 2017 - 40
Washington Lawyer - July 2017 - 41
Washington Lawyer - July 2017 - The Founding of the D.C. Bar
Washington Lawyer - July 2017 - 43
Washington Lawyer - July 2017 - 44
Washington Lawyer - July 2017 - 45
Washington Lawyer - July 2017 - A Conversation with Robert J. Spagnoletti
Washington Lawyer - July 2017 - 47
Washington Lawyer - July 2017 - 48
Washington Lawyer - July 2017 - 49
Washington Lawyer - July 2017 - Attorney Briefs
Washington Lawyer - July 2017 - 51
Washington Lawyer - July 2017 - Ask the Ethics Experts
Washington Lawyer - July 2017 - 53
Washington Lawyer - July 2017 - Disciplinary Summaries
Washington Lawyer - July 2017 - 55
Washington Lawyer - July 2017 - Last Word
Washington Lawyer - July 2017 - Cover3
Washington Lawyer - July 2017 - Cover4
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