Ethics & Professional Responsibility FLASHPOINTS September 2023

Hal R. Morris, Saul Ewing LLP, Chicago
312-876-7185 | E-mail Hal Morris

EDITOR’S NOTE: The following is an installment of a “Legal Hygiene” Series, which features pop culture scenarios to illustrate legal ethics lessons.

Legal Hygiene: What Michael Bublé Teaches Us About Conflicts

Michael Bublé is a Canadian singer, songwriter, and music producer. He has been described as a throwback and may be best described, as did the New York Times, as being “most famous for reinterpreting other people’s songs. His tastes draw from a deep pool of eras and genres.” As a tidbit, he once dated Emily Blunt and had her sing backup on several songs. His 2005 release of “You Don’t Know Me” teaches an important lesson about dealing with conflicts. But before moving to the “hidden meaning” in the song, you may be interested to know that the song was written by Eddy Arnold and Cindy Walker in 1955, recorded by Eddy Arnold in 1956, and later recorded by Ray Charles, Jerry Vale, and a host of others.

The lyrics of the song demonstrate the need to accurately and completely identify parties to a matter to accomplish a meaningful conflict search, analysis, and ultimate clearance:

You give your matter to me
And then you say “represent me”
And I can hardly speak
My heart is beating so
And anyone can tell
I think I know your matter well
But I don’t, no
No, I don’t know the one
We represent nor the one you dream to sue
[alternatively, “nor the one you dream to contract with”]
No, I don’t know the matter well . . .

In a word, the song is about the need to know the parties to a matter. (Spoiler alert! As is immediately evident, the song is a lawyer singing about his or her client.) Under the ABA Model Rules of Professional Conduct, the firm has certain duties to clients: the duties of loyalty and independent judgment to current clients requiring that the firm not be adverse to another current client (MRPC 1.7) (NOTE: The firm would also be conflicted if there is a material limitation on the representation of a client because of other factors. MRPC 1.7(a)(2).); the duty of confidentiality and to avoid conflicts if a former client’s representation was “substantially related” to a current representation (MRPC 1.9) (And, beyond this short piece is the fact that in many jurisdictions the test for a substantial relationship is not subjective, but based on what “would normally have been obtained” by a lawyer and could be used against the former client. Comment [3], MRPC 1.9.); and the duty to avoid becoming adverse to a prospective client on the “same or a substantially related” matter about which the prospective client consulted the lawyer about possible representation (MRPC 1.18).

So, what to do? Interestingly, at least to the author of this article, the Model Rules do not define “client,” “adverse party,” or any of the other relationships lawyers find with the parties in a matter. Therefore, it is especially important when opening a new client relationship or new matter to identify the parties involved, their specifics (including position in the matter), and the scope of the matter. Without such information, the conflict check may be incomplete. A quick reference guide is appropriate:

Client. This is the individual(s) or entity(ies) that the firm will represent. Phrased differently, the client is the party with which the firm has or will establish an attorney-client relationship.

CAUTION: Some clients have guidelines that define the client more broadly than the specific entity being represented. In such cases, reference to what is referred to as the family of companies or corporate tree is required to fully define “client.”

CAUTION: The party paying the fee may not be the client. For example, the specific entities, including special-purpose entities, that appear on loan documents, leases, etc., or for which we have filed an appearance, are almost always clients, not the party paying the fee.

CAUTION: The consequences of not properly identifying the client can be problematic. If a party is identified as client-related instead of as a client, we may not obtain needed informed consents, we may miss the fact that we should obtain a multiple representation letter, and we will miss the opportunity to analyze relatedness.

Client related. This is the individual(s) or entity(ies) that may be closely related to the “client” by way of corporate association, employment, ownership, etc.

CAUTION: “Client related” is not a catch-all for any party that may be relevant to the matter. Carefully analyze whether the party is actually related to the client in order to avoid generating conflicts that hold up conflicts clearances.

Adverse. This is the individual(s) or entity(ies) that are on the other side of the representation, such as, in litigation, on the other side of the “v.”; in corporate, on the other side of a transaction; etc.

CAUTION: Adverse parties include the party against whom the client is negotiating, contracting, or suing.

Alias. Be sure to include any other ways the parties are known. If the client is Tim Callahan, but always goes by Biff Callahan, the practitioner needs to know.

In addition, the scope of services is also important. The scope allows a better analysis of whether the matter is related to another matter for a former client and permits the conflicts review to be more robust. For instance, if the scope of service is a purchase of real estate, but no adverse party is listed, a party is likely missing from the conflicts check. Therefore, one should avoid placing adverse parties in most general matters as it is impossible to determine the services being provided.

To best meet our professional obligations and the mandates of Model Rules 1.7, 1.9, and 1.18, we need to know our clients and matters well and know who is involved or may be involved. By doing so, we can avoid issues with conflicts that can lead to disqualification of the firm, disgorgement of fees, and losing clients.

Keep an eye out for Legal Hygiene, Chapter 9 — “What Top Gun Teaches Us About Competence.”

For more information about ethics and professional responsibility, see ATTORNEYS’ LEGAL LIABILITY (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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