Risk Update

Adversity Examined — ABA Issues New Guidance on What’s “Material”

ABA issues new guidance on definition of ‘material adverseness’ in client representation” —

  • “The American Bar Association Standing Committee on Ethics and Professional Responsibility released today a formal opinion explaining when ABA model rules prohibit a lawyer from representing a new client against the interests of a former one.”
  • Formal Opinion 497 interprets both Rule 1.9(a) and Rule 1.18(c) of ABA Model Rules of Professional Conduct to find “material adverseness” exists when a lawyer is negotiating or litigating against a former or prospective client or attacking the work done for the former client on behalf of a current client in the same or a substantially related matter.”
  • “The formal opinion also lists other specific instances when the model rules related to ‘material adverseness’ would apply, such as if the former client can point to some specific material legal, financial or other identifiable concrete detriment that would be caused by the current representation. ‘However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client’s interests suffices,’ the opinion said.”