Citing case law precedent, the court explained the process of determining whether a disqualifying conflict of interest exists. Where, as here, the potential conflict is one that arises from the successive representation of clients with potentially adverse interests, the governing test requires that there be “a substantial relationship” between the subjects of the two representations. If the relationship was direct, meaning where the lawyer was personally involved in providing legal advice and services to the former client, as Sandler provided Betty, the question becomes whether there is a substantial relationship between the subject of the prior representation and the subject of the current representation. If the answer is yes, the court explained, access to confidential information by the attorney in the first representation – which would then be relevant to the second representation – is assumed, and disqualification of representation of the second client becomes mandatory.
Here, the parties do not dispute that a substantial relationship exists between the prior and current representations. Further, the court said, the subjects of Sandler & Rosen’s former representation of Betty and its current representation of the Marital Trust are not only substantially related, but involve the same subject matter: the intended meaning of the provision delineating the payment of estate taxes.
The court stated that an attorney is forbidden to do either of two things after severing a relationship with a former client. “He may not do anything which will injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.”
The court noted that Sandler and Rosen asserted that documents it prepared for Willet and Betty be interpreted in a manner that would substantially reduce the value of Betty’s estate, clearly harming her interests. Therefore, the court concluded that Sandler & Rosen was disqualified from representing the Marital Trust in a manner adverse to Betty, after previously representing her on the very same subject matter. The court directed the trial court to vacate its order denying the motion to disqualify Sandler & Rosen from representing the trustees in the matter and to enter a new order granting the motion.