Strickland and Rule 1.9

Question 1

Ineffective Assistance of Counsel

Strickland test

Answer 1

Must show:

1) performance – counsel made such serious errors that counsel was not functioning as “counsel” protected by 6th Amendment; and
2) prejudice – the outcome would have been different but for the ineffective counsel

Question 2

Duty to former client

Answer 2

Cannot represent person in a matter in the same or substantially related matter in which that person’s interests are materially adverse to interests of former client

Question 3

“Substantially related” (Model Rules)

Answer 3

Substantially related if “they involve the same transaction or legal dispute, or if confidential information as would normally have been obtained in prior representation would materially advance the new client’s position

Question 4

“Substantially related” (7th circuit)

Answer 4

substantially related if could have obtained confidential information in the first representation that would be relevant to the second

Question 5

“Substantially related” (2d Circuit)

Answer 5

relationship between the two matters must be “patently clear”, the issues “identical” or “essentially the same”

Question 6

“Substantially related” (5th Circuit)

Answer 6

prior need be akin to present action in a way reasonable persons would understand as important to the issues involved