By David Hricik
Prosecution for foreign clients presents several ethical issues, and the recently enacted EU General Data Protect Regulation (“GDPR”) presents some fun ones. In Maryland State Bar Association Ethics Opinion 2018-06 (here), the committee tackled how a firm can abide by an EU client’s request to be “forgotten” — and so delete all records of having represented the client — and yet after that run conflicts checks to make sure the firm isn’t being adverse to that former client in a substantially related matter, as Rule 1.9 of most state ethical rules (and USPTO rule 11.109) require. To illustrate, if you delete the fact that your firm once represented Bob Smith, and someone in the future asks your firm to be adverse to Bob Smith, Bob’s name won’t show up in the conflicts check and, if the matter against Bob is related to the work your firm and done for him, you could wind up having Bob complain that your violating Rule 1.9.
The committee stated that, if an EU client asks to be forgotten, this can be a waiver of any future conflict, stating:
If a former client asks an attorney to delete the information needed to manage conflicts of interest, and the GDPR requires the attorney do so, we believe that the client’s request can act as a waiver of conflicts that could have been discovered had the data been retained if: (1) the firm provides written advice to the former client that fully informs the former client that deleting the information could result in a conflict and that by requiring such deletion the client consents to the firm’s potential future representation of other clients with conflicts that might otherwise have been discovered, and (2) none of the attorneys who handle the matter for the firm have any retained knowledge of the former client’s information.
The opinion goes on to describe what is required for informed consent, and provides a useful guide. I don’t know how often this will happen, but if it does, this opinion provides a framework to analyze the issues. I’d be really certain the former client understands what being forgotten will mean. Perhaps they can be persuaded to let the firm forget everything except its name, and so at least that will trigger some future analysis by firm lawyers if Bob’s name shows up on a conflicts check.