As an initial matter, the Franklin Supreme Court has held that courts in the state
will be guided by the Rules in assessing conflicts of interest questions of this nature.
The first substantive issue is whether "the trade association member provided
confidential information to the lawyer that was necessary for the lawyer's representation of
the trade association." [Hooper Mfg. v. Carlisle Flooring] If the member provided such
information, then representing the association will be considered tantamount to
representing the member itself.
Based on your Memo to File regarding the Firm's representation of the Chamber, it
appears that the Firm did not obtain any confidential information from Roadsprinters, the
member, in the course of its representation of the Chamber. While the Firm has received
some confidential information from the Chamber itself regarding strategies and tactics
relating to tax issues, the Firm has not received any confidential information from or
regarding any of the Chambers' members, including Roadsprinters. Concluding that the
Firm did not obtain any confidential information about Roadsprinters in its representation
of Commerce does not end the inquiry; if the Firm advised Roadsprinters that any and all
information provided to the Firm would be treated as confidential, that would also create a
conflict. [Hooper Mfg. v. Carlisle Flooring] There is also no indication that the Firm
provided any such assurances to Roadsprinters, and that conclusion is underscored by the
fact that the Firm clarified with the Chamber that the Firm's communications with the
Chamber's members were not confidential. Indeed, the Chamber confirmed in writing that
our representation was limited to lobbying for the Chamber itself, and not for its
individual members. Because the Chamber did not provide any confidential information
about its member Roadsprinter to the Firm, and because the Firm did not advise
Roadsprinter that any information provided to the Firm would be kept confidential, if the
Firm represents Ace, it will not be directly adverse to another client (the Chamber).
The second substantive issue the Firm must consider is whether an employee of
Roadsprinter had an important position at the Chamber and whether, in that position, he
worked closely with lawyers of the Firm. If there was substantial contact, under Rule
1.7(a)(2), there may be a significant risk that the Firm’s representation of Ace might be
"materially limited" by its responsibilities to the Chamber, and thus might be barred under
the Rules. Under the facts here, this is not likely to be an issue. While Jim Perkins, the
longtime president of Roadsprinters, was chairman of the Chamber's Board for a year
during the Firm's representation of the Board, the firm did not work primarily with the
officers of the Board, and so did not work extensively with Perkins. In contrast to the
facts in Hooper, in which the trade association's lawyer worked extremely closely with the
member of the trade association the firm now was going to be adverse to (i.e., meetings
every two weeks, emails every day during legislative sessions), the minimal (if any)
contacts between the firm and Perkins are not likely to create a problem.