Representing a campus sexual assault victim-turned-activist and later using her confidential information in representing an alleged campus assailant with interests adverse to the former client is a “textbook” conflict of interest. That’s the message the Pennsylvania Supreme Court sent in suspending a lawyer for a year in a consent-to-discipline case published this week.
Former -client conflict
Most lawyers know that it’s a conflict of interest to take on a new representation adverse to a former client they’ve represented previously in a substantially related matter — at least without consent from both the new client and the former client. Model Rule 1.9, “Duties to Former Clients,” codifies the rule.
In litigation, engaging in this kind of former-client conflict of interest will likely get you disqualified. But as this case illustrates, disciplinary action is also possible.
The complainant in the disciplinary case, Hope Brinn, was a former Swarthmore College student who alleged that she had been sexually assaulted on campus, and who subsequently became a victims’ rights advocate, including for other students allegedly assaulted at the college.
Following her assault, the lawyer reached out to Brinn via Facebook, suggesting that she hire him. She responded “I hire you!” During their many communications by e-mail, Facebook, phone and in person, the lawyer said he intended to support Brinn in litigation, campus adjudication against her assailant, and in her national activism. He also assured her that anything she shared with him was confidential.
He assisted Brinn in preparing a class complaint, which she and another activist filed in 2013 with the Department of Education’s Office for Civil Rights on behalf of 12 other Swarthmore students, raising concerns about how the college handled sexual assault complaints. One of several alleged campus assailants was identified as “Juan Doe” in the complaint.
A month after the OCR class complaint was filed, Brinn terminated the lawyer’s representation. Almost two years later, the lawyer represented the same Juan Doe in filing suit against Swarthmore.
“The Angry Feminist Cabal”
The lawyer’s 135-page complaint in federal district court on Juan Doe’s behalf alleged that Swarthmore discriminated against him by giving credence to false allegations against him of sexual assault asserted by “Jane Doe,” and making him the unfair target of “vigilante justice from student activists.” The complaint, filed under seal, referred to Brinn at least 55 times by a pseudonym, “Student Activist No. 1.”
The complaint had a long section titled “The Angry Feminist Cabal within Swarthmore’s OCR … Complaints Trigger Jane Doe’s Complaint Against Juan,” in which the lawyer alleged on behalf of Juan Doe that Brinn had encouraged Jane Doe to manufacture a sham complaint of sexual assault against Juan Doe. The complaint also alleged that Brinn and others became radicalized, and made false accusations in their attempt to make Swarthmore “a safe place for women.”
The complaint contained confidential information that Brinn had provided to the lawyer during the former representation.
DQ granted … and then suspension
The district court judge granted Swarthmore’s motion to disqualify the lawyer from representing Juan Doe, based on violations of Rule 1.6 (“Confidentiality”) and Rule 1.9, arising from his former representation of Brinn. The court found a “clear and complete disregard” by the lawyer of the rule against unconsented-to former-client conflicts and his duties of confidentiality.
Likewise, the disciplinary board found in adopting the consent-to-discipline petition that the lawyer engaged in “a textbook conflict of interest by representing Juan Doe in a matter substantially related to [the lawyer’s] representation of Ms. Brinn in which Juan Doe’s interests were materially adverse to the interests of Ms. Brinn.” In addition, the board found, the lawyer lied to disciplinary authorities during their investigation, claiming that the judge in the Juan Doe case had denied the disqualification motion.
In addition to the conflict raised by representing Juan Doe, the petition detailed the lawyer’s misconduct in two other cases as well, involving claims against his mother’s employer.
Be alert for former-client conflicts, of course (including ones like this, which would seem clear-cut), and be aware that disqualification is not the only potential adverse outcome. And, of course, if you find yourself in a disciplinary investigation, never misrepresent anything; that can never help you.