Attorney Grievance Commission v. Siskind

⁴⁸ HARRELL, Judge. The Attorney Grievance Commission (“Petitioner”), acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (the “Petition”) against William L. Siskind (“Respondent”), alleging violations of the Maryland Rules of Professional Conduct (“MRPC”) in connection with his transactions involving a business associate named Frank Zokaites. Respondent is charged with violations of MRPC 1.4 (Communication), 1 1.7 (Conflict of Interest: General Rule), 2 1.8 (Conflict of Interest: Prohibited Transactions), 3 ⁴⁹ 1.9 (Conflict of Interest: Former Client), 4 1.15 (Safekeeping of Property), 5 8.1 (Bar Admissions and Disciplinary Matters), 6 and 8.4(c) (Misconduct). 7 The case was referred to the Honorable Barry G. Williams of the Circuit Court for Baltimore City to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law. At the hearing before Judge Williams on 28 January 2007, Petitioner abandoned all of the violation allegations contained in the Petition save those of MRPC 1.9 and 8.4(c).

On 8 March 2007, Judge Williams, in his written findings and conclusions, concluded that Respondent violated MRPC 1.9 and 8.4(c). ⁵⁰ I. The Hearing Judge’s Findings of Fact and Conclusions of Law Judge Williams rendered the following facts and conclusions of law, purporting to be based on clear and convincing evidence. A. Respondent’s Former Representation of 101 Charles, LLC (MRPC 1.9) On 15 February 2004, Respondent filed a complaint in the Circuit Court for Baltimore City “individually and as attorney for Transamerican Commercial, Ltd.,” (“TCL”), against 101 Charles, LLC (“101 Charles”) and Zokaites, seeking to enforce the terms of a contract executed on 15 September 2004 which conveyed ownership of 101 Charles from TCL to Zokaites. The entity, 101 Charles, was formed in July 2002 for the purpose of renovating and marketing an office building in downtown Baltimore known as the Jefferson Building. 8 Despite his protestations to the contrary, Respondent formerly represented 101 Charles as its attorney from the entity’s inception in July 2002 until 15 September 2004. In addition to serving as 101 Charles’s general counsel, Respondent performed significant legal work on behalf of 101 Charles.

In July 2002, Respondent entered into a Purchase Agreement and Addendum with Zokaites to transfer the Jefferson Building from Respondent to the newly formed 101 Charles. That Purchase Agreement indicated that “[Respondent] will provide an attorney’s letter of title to Zokaites and [101 Charles]. [Respondent] will not charge Zokaites or [101 Charles] any fees for legal work performed in connection with the Property and this Agreement.” (emphasis added). Further, Respondent prepared a deed conveying the Jefferson Building from TCL to 101 Charles. ⁵¹ Because Respondent formerly represented 101 Charles, the hearing judge determined that Respondent violated MRPC 1.9 when he initiated the contract suit on 15 February 2005 against his former client. The lawsuit he filed on behalf of TCL and himself involved the same or a substantially related matter to the 15 September 2004 transference of TCL’s member shares in 101 Charles to Zokaites because the suit sought to enforce the terms of the contract effectuating the transfer.

According to the hearing judge, because Respondent indirectly owned and controlled 50% of 101 Charles through his ownership of TCL, he “necessarily had confidential information regarding 101 Charles.” Further, there existed a substantial risk that Respondent disclosed and used confidential information in filing suit against his former client, 101 Charles. Finally, TCL’s and Respondent’s pecuniary interests were materially adverse to those of 101 Charles because, if the Respondent’s lawsuit was successful, his former client could have been required to pay over $300,000 in damages to Respondent and TCL. B. Zokaites’s Loan to TCL (MRPC 8.4(c)) In March 2002, Zokaites loaned $151,550.00 to Respondent to enable Respondent to satisfy an architect’s lien on a New Mexico investment property known as La Mesa Race Track, which is owned partially by Respondent. The Collateral Agreement for the March 2002 loan stated, “Zokaites has agreed to lend the total sum of $151,550.00 to [Respondent] in accordance with the terms of a Note entered into by [Respon dent].” (emphasis added).

The Collateral Agreement made two other references to Respondent as a party to, and recipient of, the loan. Respondent understood fully the Collateral Agreement. Contradicting the Collateral Agreement, however, was a Promissory Note dated 20 March 2002 indicating that the borrower of the $151,550.00 was TCL. The Promissory Note was drafted and signed by Respondent on behalf of TCL.

Further, a mortgage, dated 4 April 2002, refers to the $151,550.00 loan, stating that TCL is the mortgagor. The ⁵² mortgage was drafted and signed by Respondent on behalf of TCL. Respondent, when drafting and signing legal documents, generally uses his name and TCL interchangeably. Thus, it was not a mistake or oversight when Respondent used his own name as the borrower in the Collateral Agreement.

Another example of this synonymous use was found in the Purchase Agreement, dated 9 July 2002, of the Jefferson Building in Baltimore. In the Purchase Agreement, Respondent described himself as the owner of the Jefferson Building, but the deed later conveying the building to 101 Charles listed TCL as the owner. The deed was signed by Respondent on behalf of TCL. At other times, however, Respondent was more precise in using his name or that of TCL.

For example, Respondent, in drafting the Addendum to the Purchase Agreement, appeared to appreciate the legal ramifications of using his name at certain points and that of TCL at others. Furthermore, Respondent made inconsistent statements about the identity of the loan recipient regarding the New Mexico property. In a 20 May 2005 letter to Bar Counsel, Respondent stated, “/ negotiated with Zokaites” and “/ secured the loan by a promissory note signed by me, individually. As a bonus for lending me the money I promised Zokaites a 2% interest in my 50% interest either in the sale of La Mesa Track, or the same interest in the net income produced by the track if my partner of 50% and I developed it.” (emphasis added).

In a letter to Bar Counsel several months later, however, Respondent characterized the same transaction as a loan to La Mesa, LLC. In that same letter, Respondent indicated that $126,500.00 of the loan was deposited into a bank account controlled by Respondent at Carrollton Bank and, further, that some $13,668.51 not used to pay off the lien on the race track and satisfy legal fees, “per agreement of Mr. Zokaites, was to be used as [Respondent] saw fit.” (emphasis added). Accordingly, Respondent personally borrowed money from Zokaites. In a 5 April 2004 deposition of him taken in the ⁵³ course of his personal bankruptcy case, however, Respondent stated, “I have not personally borrowed any money from Mr. Zokaites.” In responses to discovery in the present disciplinary matter, Respondent indicated that his sworn answers at the deposition in the bankruptcy matter were not accurate or true.

Contrary to his assertions that he was mistaken at the deposition, Respondent knowingly testified falsely under oath when he stated that he never personally borrowed money from Zokaites. This knowingly false testimony violates MRPC 8.4(c) according to Attorney Grievance Commission v. White, 354 Md. 346, 367 , 731 A.2d 447, 459 (1999). C. Respondent’s Assertion that Zokaites was his Client (MRPC 8.4(c)) At the 5 April 2004 deposition in his personal bankruptcy case, Respondent answered a question seeking the identification of Zokaites by replying, “He is a client of mine and my son’s, and I have some business with him.” Respondent thereafter in the deposition invoked attorney-client privilege as the basis for refusing to answer inquiries whether Zokaites loaned him money. Although Respondent was aware that his deposition testimony was under oath, he now asserts that his testimony was incorrect and the result of confusion related to his advanced age.

This explanation was found unsatisfactory and incredible by Judge Williams in light of the fact that, during the hearing on the Petition, Respondent was otherwise able to provide detailed and thorough descriptions of the complex business transactions he structured with Zokaites and others. Respondent’s excuse is also undermined by the complicated legal and business documents drafted and/or signed by him. Therefore, Respondent failed to prove his defense of mistake by a preponderance of the evidence. It is undisputed that Respondent never served as Zokaites’s attorney.

Thus, Respondent knowingly testified falsely under oath in violation of MRPC 8.4(c) when he indicated that he was Zokaites’s attorney. ⁵⁴ II. Standard of Review The standard of review for attorney disciplinary matters is succinctly summarized in Attorney Grievance Commission v. Zdravkovich, 375 Md. 110 , 825 A.2d 418 (2003): This Court exercises “ ‘original and complete jurisdiction for attorney disciplinary proceedings in Maryland,’ and conducts ‘an independent review of the record.’ ” “In conducting that review, we accept the hearing judge’s findings of fact as prima facie correct unless shown to be ‘clearly erroneous,’ and we give due regard to the hearing judge’s opportunity to assess the credibility of witnesses.” “As to the hearing judge’s conclusions of law,” however, “ ‘our consideration is essentially de novo.’ ” 375 Md. at 126 , 825 A.2d at 427 (citations omitted). In reaching the findings of fact to which we bestow a good measure of deference in our review, the hearing judge must “apply the clear and convincing standard of proof when weighing the evidence.” Attorney Grievance Comm’n v. Ward, 394 Md. 1, 16 , 904 A.2d 477, 486 (2006) (citing Attorney Grievance Comm’n v. Harris, 366 Md. 376, 389 , 784 A.2d 516, 523-24 (2001)); Maryland Rule 16-757(b). “The clear and convincing standard of proof lies somewhere between a preponderance of evidence standard, which-is generally applied to civil cases, and beyond a reasonable doubt standard, which is applied to most crimes.” Ward, 394 Md. at 16 , 904 A.2d at 486 (citing Harris, 366 Md. at 389 , 784 A.2d at 523 ). The attorney subject to the disciplinary hearing may assert “an affirmative defense or a matter of mitigation or attenuation[, but] has the burden of proving the defense or matter by a preponderance of the evidence.” Maryland Rule 16-757(b); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 50-51 , 891 A.2d 1085, 1095 (2006).

III

Respondent’s Exceptions After receiving three extensions of the filing deadline from us, Respondent filed exceptions to Judge Williams’s findings of fact and conclusions of law on 14 May 2007. Stated generally, ⁵⁵ Respondent advanced the following exceptions: (1) the hearing judge found erroneously that Respondent knowingly made a false statement at the bankruptcy deposition by asserting that he was Zokaites’s attorney; (2) Respondent’s assertion of attorney-client privilege at his bankruptcy deposition did not violate MRPC 8.4(c) because the assertion did not prevent the deposing attorney from acquiring the information he sought; (3) the hearing judge found erroneously that Respondent made a false statement at the deposition when he testified that he had not borrowed personally any funds from Zokaites; (4) the hearing judge wrongfully did not require Bar Counsel to prove by clear and convincing evidence that Respondent intended to testify falsely at the deposition; (5) the hearing judge, once convinced that the Respondent made a false statement, incorrectly placed the burden on Respondent to prove that his misstatement was an innocent one; (6) the hearing judge failed to find explicitly that Respondent intended to make false statements;(7) the hearing judge concluded erroneously that there was a “substantial relationship” between Respondent’s former representation of 101 Charles and the 2004 transaction which served as the basis for Respondent’s contract action against 101 Charles, (8) the hearing judge neglected to find that 101 Charles waived the conflict of interest presented by Respondent’s representation of TCL by failing to object to Respondent’s appearance; and (9) the hearing judge erred by not recognizing that former business partners who are having a falling out and sue each other have no right of confidentiality as to their previous communications with each other or their lawyer. A. Respondent’s Former Representation of 101 Charles, LLC (MRPC 1.9) 1. No Substantial Relationship Respondent first argues that his representation of 101 Charles was limited only to creating the deed, articles of incorporation, and an opinion letter related to the transfer of a 50% interest in 101 Charles to Zokaites.

Further, Respondent asserts that Jeffrey Siskind (his son, who is an attorney ⁵⁶ in Florida) and Zokaites prepared and signed the later Purchase Agreement, executed on 15 September 2004, which transferred TCL’s member shares in 101 Charles to Zokaites. Respondent also disputes the hearing judge’s finding that Respondent drafted both the 20 March 2002 Promissory Note for the La Mesa loan made by Zokaites and the Addendum to the 2004 Purchase Agreement. This limited involvement in the affairs of 101 Charles, in the opinion of Respondent, is not substantially related to the litigation for which Respondent represents TCL against 101 Charles. In support of this position, Respondent argues that the hearing judge misapplied this Court’s standard, articulated in Gatewood v. State, 388 Md. 526 , 880 A.2d 322 (2005), for determining whether two legal matters are substantially related for the purposes of conflict of interest analysis.

In particular, Respondent contends that Bar Counsel failed to prove that there was a substantial risk that information confidential to 101 Charles was utilized by Respondent in his later suit against 101 Charles. As an illustration, Respondent relies upon Gatewood for the proposition that it was error to conclude that there was a substantial relationship, because neither Bar Counsel nor the hearing judge undertook a close examination of the facts relating to Respondent’s previous representation of 101 Charles to determine if Respondent was using confidential information. In Gatewood , the trial judge, once alerted to a possible conflict in a criminal case, quizzed the allegedly conflicted prosecuting attorney to satisfy himself that the attorney could not recall confidential information gained from prior representation of the then-defendant while serving as his public defender in an earlier, unrelated matter. 388 Md. at 532-36 , 880 A.2d at 325-28 . We do not accept, similar to the hearing judge’s view, Respondent’s bald assertion that he did not compose the 2004 Purchase Agreement.

The hearing judge made a finding of fact, based on his evaluation of the evidence and observation of Respondent as a witness, that Respondent performed legal work for 101 Charles, including the drafting and execution of ⁵⁷ the Purchase Agreement. The hearing judge’s findings are supported by the requisite quantum of proof. The pertinent consideration here is whether Respondent’s previous representation of 101 Charles is “substantially related” to the contract action Respondent filed against 101 Charles on behalf of TCL. As we said in Gatewood , “ ‘substantially related’ embraces consideration of circumstances where the same issue is litigated, albeit for a different client, if there is a substantial risk that confidential communications between the attorney and his or her former client may be disclosed or utilized in a material manner prejudicial to the former client.” 888 Md. at 544, 880 A.2d at 332-38 .

By operation of law, Respondent is assumed to possess confidential information pertaining to 101 Charles because he served as the entity’s attorney. Buckley v. Airshield Corp., 908 F.Supp. 299, 306 (D.Md.1995) (quoting Tessier v. Plastic Surgery Specialists, Inc., 731 F.Supp. 724, 731 (E.D.Va.1990)) (“It is well settled that once an attorney-client relationship has been established, an irrebuttable presumption arises that confidential information was conveyed to the attorney in the prior matter.”). This presumption arises in the present case because of the level of Respondent’s involvement with 101 Charles’s affairs. Respondent’s intimate involvement in the preparation of various legal and business documents relating to 101 Charles, from the moment of its inception until the transaction which made Zokaites its sole owner, demonstrates that Respondent possessed significant knowledge of its affairs, arguably more than anyone.

His guiding hand was involved in every legal transaction affecting 101 Charles. He recounted detailed information regarding the entity for purposes of this and other litigation. It is beyond reasonable contention that Respondent was equipped with confidential information bearing on the contract action he initiated against his former client. Further, Respondent’s recall, for purposes of his defense at the hearing on this disciplinary action, of details relating to the transactions affecting 101 Charles supports the ⁵⁸ notion that such information still resided within Respondent’s memory at the time he filed suit against his former client.

Accordingly, we are unmoved by Respondent’s argument that the hearing judge failed to make express findings as to what specific confidential information regarding 101 Charles Respondent possessed and used. Respondent appears to fault the hearing judge for not querying Respondent in the same probing manner as the trial judge did for the Public Defender, turned State’s Attorney, who previously defended, in another case, the same defendant he was now prosecuting. Gatewood, 388 Md. at 532-36 , 880 A.2d at 325-28 . Interrogation is not required in every case.

Gatewood does not stand for the proposition that judges themselves must conduct an exhaustive inquisition of potentially conflicted attorneys. The facts in Gatewood , rather, were unique. There the trial judge was moved to pose questions to the potentially conflicted attorney as the result of two oral motions to disqualify the attorney. In other contexts, all that may be required is that a judge, in the course of his or her deliberations, “examine the nature and scope of the prior and present representation and determine whether confidences might have been disclosed in the course of the prior representation which could be relevant to the present action.” Buckley, 908 F.Supp. at 304-05 .

It is clear to us that Judge Williams observed the relevant considerations on the record before him and we find no error infecting his conclusion. 2. Any Confidentiality Was Destroyed by the Contract Suit Respondent stakes out an alternative position where he argues that any confidential information he may have attained by virtue of formerly representing both 101 Charles and TCL may be wielded against 101 Charles in a subsequent suit against it by TCL as represented by Respondent. This position purportedly is supported by a principle of law known variably as the “common interest doctrine” or the “joint representation doctrine.” As this doctrine goes, confidential information divulged by co-clients to a shared attorney loses its confidential nature when litigation arises between the ⁵⁹ former co-clients as the result of a breakdown in their common interest. See In re Matter of a Grand Jury Subpoena, 406 F.Supp. 381, 393 (S.D.N.Y.1975); see also Hillerich & Bradsby v. MacKay, 26 F.Supp.2d 124, 127 (D.D.C.1998); Opus Corp. v. IBM Corp., 956 F.Supp. 1503, 1506 (D.Minn. 1996); Polycast Tech.

Corp. v. Uniroyal, Inc., 125 F.R.D. 47, 50 (S.D.N.Y.1989). Respondent reasons that, because the information he attained in the process of representing both TCL and 101 Charles underwent the above-mentioned transmogrification from confidential to non-confidential when TCL initiated a suit against 101 Charles, the matters are no longer substantially related. Accordingly, without a substantial relationship between the previous concurrent representation and the contract claim, any utilization by him of information gained from the concurrent representation would not present a conflict of interest. The argument is clever, but incorrect.

We have agreed already with the hearing judge’s conclusion that Respondent possessed confidential information relating to 101 Charles, obtained from his previous representation of the entity. Respondent’s alternative argument, however, gainsays the confidential nature of that information because the attorney-client privilege that existed between each of 101 Charles and TCL and their attorney, Respondent, was destroyed as a result of the subsequent contract litigation. This argument, however, fails because, for purposes of an attorney discipline proceeding involving a conflict with a former client’s interests, the existence of an attorney-client privilege does not matter. Respondent overlooks a lawyer’s broader ethical duty to avoid representing conflicting interests, which supercedes the more narrow evidentiary concern of attorney-client privilege.

See In re Criminal Investigation No. 1/242Q, 326 Md. 1, 5 , 602 A.2d 1220, 1222 (1992) (“[T]he rule of confidentiality is broader than the attorney-client privilege.”). Other jurisdictions encountering Respondent’s species of argument have expressed the same reason for rejecting it. ⁶⁰ The U.S. Court of Appeals for the Fifth Circuit was presented with an argument similar to Respondent’s in an attorney disqualification case, Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168 (1979). Brennan’s Inc. involved a dispute between two camps of a federated chain of family-run restaurants spread across various Southern states. 590 F.2d at 170 . Prior to the dispute, all of the family members were stockholders and directors in the plaintiff corporation, which controlled the New Orleans branch of the restaurant chain, and some were stockholders and directors for the defendant corporations controlling other chain locations in Texas, Georgia, and other parts of Louisiana.

Id. For a period of approximately two years, an attorney named Wegmann served as general counsel for the family businesses. Id. In that time, he prosecuted the applications for federal registration of several service marks.

Id. A later rift in the family caused the division of the restaurants into two camps and Wegmann decided to continue his representation of the defendants and severed his connections to the plaintiff. Id. Subsequent to the division of the several family restaurants among the feuding family members, a legal dispute arose over the use of the service marks registered in the plaintiffs name.

Brennan’s, Inc., 590 F.2d at 170-71 . Wegmann represented the defendant corporations in the suit filed by his former client as plaintiff and submitted a counterclaim. Brennan’s, Inc., 590 F.2d at 171 . The plaintiff moved to disqualify Wegmann based on a conflict of interest, which motion the trial court granted.

Id. The corporate defendants appealed that ruling, arguing that the joint representation prevented the formation of any confidences between the parties and Wegmann, thus obviating for Wegmann any ethical duty not to represent the defendants against his former client. Id. The Brennan’s, Inc. court rejected the defendants’ argument.

The court began by reciting the familiar prohibition against representing any interest materially adverse to that of a former client when the matters are substantially related, a rule premised on the presumption that the former representation involved the disclosure of the client’s confidences. Id. ⁶¹ Contrary to the defendants’ assertion that such a presumption does not arise in joint representation scenarios, the court noted that “[t]he fundamental flaw in defendants’ position is a confusion of the attorney-client evidentiary privilege with the ethical duty to preserve a client’s confidences.” Brennan’s, Inc., 590 F.2d at 172 . “[T]he ethical duty is broader than the evidentiary privilege,” encompassing the protection not only of confidential information, but “all knowledge acquired from client.” Id. The court stressed the fiduciary duty that is formed when a client places his or her trust in an attorney and the obligation not to betray that trust. “A client would feel wronged if an opponent prevailed against him with the aid of an attorney who formerly represented the client in the same matter.” Id. Finally, the court opined that “[t]he need to safeguard the attorney-client relationship is not diminished by the fact that the prior representation was joint with the attorney’s present client.” Id.

Several jurisdictions have acknowledged the wisdom of the reasoning in Brennan’s, Inc. See, e.g., Exterior Sys., Inc. v. Noble Composites, Inc., 210 F.Supp.2d 1062, 1071-72 (N.D.Ind.2002); Lawyer Disciplinary Board v. McGraw, 194 W.Va. 788 , 461 S.E.2d 850, 861 (1995); X Corp. v. Doe, 805 F.Supp. 1298, 1307-08 (E.D.Va.1992); Prisco v. Westgate Entm’t, Inc., 799 F.Supp. 266, 270 (D.Conn.1992); Koch v. Koch Indus., 798 F.Supp. 1525, 1535 (D.Kan.1992); Anchor Packing Co. v. Pro-Seal, Inc., 688 F.Supp. 1215, 1217-18 (E.D.Mich.1988); St. Albans Fin. Co. v. Blair, 559 F.Supp. 523, 526 , aff'd, 725 F.2d 670 (3d Cir.1983). Even courts not relying on Brennan’s, Inc. arrive at the same conclusion. In Knight v. Ferguson, 149 Cal.App.4th 1207 , 57 Cal.Rptr.3d 823 (2007), two parties, who eventually became associates in a restaurant venture, had been represented concurrently by an attorney named Wideman.

One of the soon-to-be partners, Knight, consulted with Wideman, who was already the Fergusons’ attorney, regarding the formation of a corporation to run a restaurant. Knight, 57 Cal.Rptr.3d at 826 . Wideman was also retained to handle a dispute Knight had with a party sought originally as her associate in ⁶² the venture, but who backed out. Id.

Knight invited the Fergusons to substitute for the balking erstwhile associate, which invitation was accepted. Id. At some point subsequent to the formation of the business (with Wideman’s assistance), Knight sued the Fergusons for breach of contract. Id.

Although initially represented by other counsel, the Fergusons retained Wideman to pursue their cross-complaint against Knight. Id. The California Court of Appeals held that Wideman should be disqualified from representing the Fergusons in the contract action against Knight because of the conflict of interest involved. Knight, 57 Cal.Rptr.3d at 829 .

Wideman represented jointly both parties, now adversaries, in forming the business venture. Knight, 57 Cal.Rptr.3d at 828 . When a conflagration regarding the business venture erupted between the parties and litigation ensued, Knight objected to Wide-man’s representation of the Fergusons. Knight, 57 Cal.Rptr.3d at 826 .

The Fergusons, pleading essentially the same argument proffered by Respondent here, argued that no conflict was present because the previous joint representation destroyed any attorney-client privilege that existed, and thus any confidentiality concerns disappeared. Knight, 57 Cal.Rptr.3d at 828 . The California court rejected that argument, declaring that, even if the attorney-client evidentiary privilege does not apply, the result does not change. “[T]he pertinent issue is the propriety of an attorney’s representation adverse to a former client. Our courts have distinguished the rule against representing conflicting interests from the attorney-client evidentiary privilege noting that the former is broader than the latter.” Thus, even where the issue of disclosure of privileged information is absent, an attorney is properly disqualified for violating the separate and independent duty not to represent conflicting interests.

Knight, 57 Cal.Rptr.3d at 829 (quoting W. Cont’l Operating Co. v. Natural Gas Corp., 212 Cal.App.3d 752 , 261 Cal.Rptr. 100, 105 (1989)). The Knight court further elucidated that ⁶³ [t]he evidentiary privilege and the ethical duty not to disclose confidences both arise from the need to encourage clients to disclose all possibly pertinent information to their attorneys, and both protect only the confidential information disclosed. The duty not to represent conflicting interests ... is an outgrowth of the attorney-client relationship itself, which is confidential, or fiduciary, in a broader sense. Not only do clients at times disclose confidential information to their attorneys; they also repose confidence in them.

The privilege is bottomed only on the first of these attributes, the conflicting-interests rule, on both. Knight, 57 Cal.Rptr.3d at 829 (quoting W. Conit'l Operating Co., 261 Cal.Rptr. at 105-06 ). Put another way, there is more to the attorney-client relationship than the mere words exchanged between client and counsel. There is a more fundamental aspect of the relationship that is the sense of trust and confidence a client invests in his or her chosen legal counselor and representative.

In cases involving alleged ethical violations, this fiduciary duty is of paramount concern. Common sense also demonstrates the impropriety of Respondent’s action. In the process of crafting a clever argument to prove that no conflict existed because the confidential information lost its confidential value, Respondent loses sight of a fundamental test by which these questions ought to be resolved. The Comment to MRPC 1.9 reads, in relevant part: “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” We are of the opinion that when Respondent filed a suit sounding in