Hinderks Discusses Conflicts of Interest with Current Clients, Duties to Former Clients in Legal Intelligencer Column

02.26.2024

Stinson LLP Senior Counsel Mark Hinderks authored a column for The Legal Intelligencer, "When Does a Current Client Become a Former Client, Allowing a Lawyer to Be Adverse to a Client With No Recent Work?" Hinderks says this issue is generally framed as whether the client has a reasonable belief that the firm still represents it.

"This question boils down to whether the company in question is a current client, in which case bringing an action against it, even on an unrelated matter, would be a concurrent conflict under Model Rule 1.7," Hinderks writes. He says if the client is a former client, "Rule 1.9 would permit adversity in a matter that is not substantially related to anything the firm did for the company (provided the firm also doesn't use or reveal any information related to its work for the company)."

Hinderks says the firm should look at various facts, including the absence of work for the client for a specific period of time and the overall length and depth of the relationship. He also notes that "general files" have been commonly used by law firms for convenience, allowing the inclusion of several projects without having to open and close additional files or send new engagement letters each time. He urges firms to reconsider the use of the "general file" or to at least establish boundaries for best practices around the process.

Hinderks leads the firm's Legal Ethics & Professional Responsibility practice. He is the author of Dear Ethics Lawyer, a twice-monthly newsletter with questions and answers concerning legal ethics, and a co-founder and presenter of "Ethics for Good," a twice-annual stage show which uses humor, skits and real-world scenarios to teach legal ethics to lawyers. Hinderks has presented more than 135 programs on legal ethics over the past 30 years, has authored many articles and handbook chapters on legal ethics, and has been deeply involved in professional organizations with legal ethics and professional responsibility as their focus.

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