Washington Lawyer - July 2017 - 52

ASK THE ETHICS EXPERTS

The Appearance of Impropriety

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?

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news is that the Code was superseded by the D.C. Rules of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

The road to retirement
is a journey.

To access D.C. Bar Legal Ethics Opinions, visit dcbar.org/
bar-resources.

Pick your herd wisely.
Whether you are just starting out,
or nearing the end of your career,
the road to a successful
retirement takes long-term planning. Pick a
provider that has been helping law professionals
prepare for retirement for over 50 years.
The ABA Retirement Funds Program is that
provider. Find out today how we can help lead
you on your journey to retirement.

Contact an ABA Retirement
Funds Program Regional
Representative today.
866.812.1510
www.abaretirement.com
joinus@abaretirement.com

The ABA Retirement Funds Program is available through The D.C. Bar. as a member benefit.
Please read the Program Annual Disclosure Document (April 2016) carefully before investing. This
Disclosure Document contains important information about the Program and investment options.
For email inquiries, contact us at: joinus@abaretirement.com.
Securities offered through Voya Financial Partners, LLC (Member SIPC).
Voya Financial Partners is a member of the Voya family of companies ("Voya"). Voya and the ABA
Retirement Funds are separate, unaffiliated entities, and not responsible for one another's products
and services.
CN1029-19104-1117 - 2015

http://www.dcbar.org/bar-resources/legal-ethics/index.cfm http://www.abaretirement.com

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