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Abstract

The practice of law in Maine, as elsewhere in the United States, is changing. Problems that previously have been considered insignificant are more pronounced because of the increase in the number of practicing attorneys. One problem likely to be confronted by Maine lawyers on an increasing basis is that of determining the appropriateness of representing a party against a former client of the lawyer or the lawyer's firm. This problem is complicated by today's competitive job market for lawyers, which forces inexperienced lawyers to switch firms more frequently than in the past. While it is a generally accepted axiom that a lawyer cannot represent a party in a similar matter adverse to the lawyer's previous client, moving from firm to firm (or from a firm to a solo practice) raises a number of other questions regarding the transferring or “migratory” lawyer's responsibilities. Can the lawyer represent interests adverse to the lawyer's former firm's clients if they were not the lawyer's personal clients? Is the lawyer restricted from opposing clients of the former firm even if the lawyer can show that he obtained no information relating to the former client while the lawyer worked at the old firm? If the lawyer is prohibited from representation, are all of the lawyer's new colleagues similarly disqualified? Courts throughout the United States have been struggling to find the “right” answers to these questions for some time. Indeed, since the mid-1950s numerous cases and commentaries have addressed both the policies that underlie certain prohibitions of successive representation and the rules that should guide an attorney's conduct in such situations. Only in the last several years, however, has Maine's highest court been faced with the challenge of determining when a lawyer should be disqualified from representing a client against a party with whom the lawyer has a previous connection. Most recently, in Casco Northern Bank v. JBI Associates, the Maine Supreme Judicial Court, sitting as the Law Court, unanimously upheld a trial judge's disqualification of two attorneys who were seeking to represent a business entity in a suit against the entity's former affiliates. The court held that due to the nature of the lawyers' connection to the previous work done on behalf of all of the parties, the lawyers were now barred from representing one party against the others. The Law Court prohibited the first attorney from representing JBI Associates against its former affiliates in a lease dispute because the attorney had participated in the creation of JBI Associates and an affiliated company that, the court held, was substantially related to the present matter. The second lawyer was disqualified because he previously had been associated with the first lawyer and so was presumed to have received the same confidential information. When determining whether a lawyer's current representation is adverse to a prior representation most courts have utilized the “substantial relationship” test. There is much less agreement regarding when the possession of confidential information should be imputed to the attorney's former or present colleagues.

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