FL - FSU Law Professor Dan Markel Murdered by Hitmen *4 Guilty* #25

[Zedzded]

God forbid anyone ever being in such shoes.

Someone told me about own experience of being raised by some relatives because dad killed mom, and finally meeting dad decades later, as an adult. That person didn’t feel any hatred, on the contrary, they were so darn happy to meet a single parent in their life. It was the father’s fault that the child was practically orphaned, but how this double void felt for the growing child we also have to understand.

Yeah I get it. One of my good friends was charged with some pretty horrendous sex crimes. You read about people like him in the news and feel rage and hatred for the perpetrator. And that's what I wanted to feel, but I didn't. I was obviously disgusted with what he did and will never speak to him again, but I just felt no hatred, which was quite confronting and confusing in a way.

So reflecting on my previous comments and thoughts re the Markel boys. I would understand if their Mum is found guilty and they still find a place for her in their lives. They probably love their Mum and their Dad is now just a distant memory.

 

[Going Rogue]

In my opinion, the interests of alleged co-conspirators are generally ALWAYS materially adverse to each other. This is why they generally are not represented by the same attorney, in my experience. Sigfredo and Katie, for example, had different attorneys. (They did not end up testifying against each other, but because each had an attorney who represented ONLY their interests, they retained the option to do so, without presenting any potential conflict for their attorney.)

Why? Because in my understanding, in many instances, the best defense for one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other. Such a defense, in my opinion, can never be ruled out as an option for the client.

If they have the same attorney, any defense for one client which would harm or implicate the other is effectively foreclosed, as is the possibility of one turning on the other to get a deal.

What may be confusing in this case is the fact that Rash represented these clients in sequence and not at the same time. In my opinion the conflict is still present absent an express waiver, and there is no guarantee such a waiver won’t be rescinded later, or that it will be accepted as sufficient by the court.

Hypothetically, for example, the attorney may have learned confidential information from the first co-conspirator client which would be helpful in his subsequent representation of the second, but he might be precluded from using it because it would harm the first co-conspirator, or vice-versa. This is compounded in this case, in my opinion, because Donna has been at various points, both the first and the second client in the above hypothetical.

All in all, in my opinion, it’s a mess.

Based on Rule 1.9, the interests of the ‘client’ and the ‘former client’ (Charlie & Donna) being ‘materially adverse’ has to be evaluated based on the variables / conditions that are ‘real’ and ‘known’. In your response you are outlining variables or conditions that do not exist in this case OR are just hypothetical scenarios:

“one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other”

I can easily make the argument that Charlie and Donna’s interests were not ‘materially adverse’ prior to Ufferman’s motion based on the data we had at that time and I can do that without adding hypothetical scenarios to support that case / position.

 

[amicuscurie]

Based on Rule 1.9, the interests of the ‘client’ and the ‘former client’ (Charlie & Donna) being ‘materially adverse’ has to be evaluated based on the variables / conditions that are ‘real’ and ‘known’. In your response you are outlining variables or conditions that do not exist in this case OR are just hypothetical scenarios:

“one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other”

I can easily make the argument that Charlie and Donna’s interests were not ‘materially adverse’ prior to Ufferman’s motion based on the data we had at that time and I can do that without adding hypothetical scenarios to support that case / position.

My point is that if co-conspirators have the same attorney, any defense which would be helpful to one but harmful to the other would be foreclosed. Sure, we don’t know whether either Charlie or Donna would have wanted to avail themselves of such a defense. We don’t know whether they would have viewed their interests as materially adverse. But, with the same counsel, I think we can safely speculate that no defense would have even been proposed for one which would be adverse to the other.

Having the same counsel takes the very idea that your interests might be adverse to your co-conspirator’s off the table, and that is why it is generally not advisable, in my opinion. The client has the right to his own counsel who isn’t even thinking about how the rights or wishes of another client might or might not conflict with his, and so can give him the most zealous representation possible.

 

[Charlot123]

In my opinion, speaking hypothetically, it’s ok to take sides against murder. If the one who commits it, hypothetically, has been legally determined to be a relative, I agree that therapy is definitely necessary for dealing with many issues which would possibly arise from this realization, such as helping you accept what happened and who they are, and helping you to realize that you do not have to follow in their footsteps, and to realize it is not your fault. I do think this would take a long time, and a great deal of therapy. But in my opinion there is never an absolute need to maintain a relationship with a parent, particularly if that parent has harmed you directly or is a toxic person. Apparently Robert Adelson, from a what I understand, made a choice to distance himself.

OK, we all inherit 50% of the genome from each parent, but in what combination, is absolutely random. I suspect that it all started with RA being very much unlike his mother, mentally. Maybe he could be a good role model for WA’s kids because he obviously managed to maintain his independence and sanity.

 

[Charlot123]

Yeah I get it. One of my good friends was charged with some pretty horrendous sex crimes. You read about people like him in the news and feel rage and hatred for the perpetrator. And that's what I wanted to feel, but I didn't. I was obviously disgusted with what he did and will never speak to him again, but I just felt no hatred, which was quite confronting and confusing in a way.

So reflecting on my previous comments and thoughts re the Markel boys. I would understand if their Mum is found guilty and they still find a place for her in their lives. They probably love their Mum and their Dad is now just a distant memory.

We all need emotional warmth more than intellectually uplifting conversations. After all, we can debate with ourselves, discuss with ourselves, self-teach, even play chess with ourselves. All that we know really well we taught ourselves, to think of. But emotionally colored world we can get only from others. Usually, one parent is more warm than the other. So in a way, we need more and tend to miss more the “emotionally enriching parent.” Who of the M-A couple was such a parent, it is impossible for me to say. I wouldn’t be surprised to hear that it was DM. WA appears detached, but appearances can be misleading. Well, I hope that she’ll be able to be the emotionally warm parent, because if that part is buried with Dan, that’s a double whammy.

 

[Going Rogue]

My point is that if co-conspirators have the same attorney, any defense which would be helpful to one but harmful to the other would be foreclosed. Sure, we don’t know whether either Charlie or Donna would have wanted to avail themselves of such a defense. We don’t know whether they would have viewed their interests as materially adverse. But, with the same counsel, I think we can safely speculate that no defense would have even been proposed for one which would be adverse to the other.

Having the same counsel takes the very idea that your interests might be adverse to your co-conspirator’s off the table, and that is why it is generally not advisable, in my opinion. The client has the right to his own counsel who isn’t even thinking about how the rights or wishes of another client might or might not conflict with his, and so can give him the most zealous representation possible.

Yes, we all agree that it’s not advisable, but it is permissible. I was looking for someone to poke holes in my interpretation of Rule 1.9 and based on my interpretation (if correct), I’m asking how anyone can blame the prosecutors, Jack Campbell, Judge Everett or Dan Rashbaum for what unfolded. I have seen plenty of videos and comments dishing out blame in all those directions.

 

[ch_13]

Rule 1.9 from the ABA:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.​

Posting my thoughts on the above expert from the Rule 1.9: 'Duties to Former Clients' from the American Bar Association regarding the very issue we encountered that derailed Donna’s trial. I’m hoping someone with qualified *** by qualified I mean someone with legal credentials *** can explain how my layman interpretation is wrong:

Here is my layman breakdown of Rule 1.9 and why I think it’s unfair to cast aspersions on Jack Campbell, the prosecution team, or Judge Everett – I have seem many criticism of them all based on the latest developments. Further, in my layman opinion, Rashbaum did not break any ethics rules by representing Donna (only based on what is public) and I will explain why:

Rule 1.9 clearly states that a lawyer ‘shall not’ represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. Can someone please explain how BEFORE Ufferman filed the motion to rescind Charlie’s waiver and object to Rashbaum’s representation of Donna and object anyone on Donna’s legal team from cross-examination of Charlie that you can argue Charlie and Donna’s interests were materially adverse? I understand the 'POTENTIAL' of conflicts arising especially in light of what happened - which is precisely why the ABA addresses this in Rule 1.9. They were clearly materially adverse AFTER Ufferman filed the motion BUT so long as they both agreed to Rashbaum’s representation (they did) and based on Donna’s defense strategy (unknown to anyone outside her legal team) we CAN’T say that PRIOR to Ufferman’s motion Charlie and Donna’s interests were materially adverse.

All those Monday morning quarterbacks assigning varying percentages of blame on both sides fail to mention the ambiguity of Rule 1.9. Maybe I’m wrong in my interpretation which is why I'm posting my thoughts and looking for ‘qualified’ opinions.

I'm no attorney, but I'm trying to follow your argument.

We know that Charlie never signed the written waiver form. So the last clause of Rule 1.9(a): "unless the former client gives informed consent, confirmed in writing." was clearly not met.

I don't see how that's not a violation of Rathbaum's ethical duty. Judge Everett certainly seems to agree. He wrote this in his order: "The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar." (emphasis added)

For what it's worth here's the ABA's formal opinion of "Conflicts Involving Materially Adverse Interests", issued on February 10, 2021.

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-497.pdf

 

[amicuscurie]

I'm no attorney, but I'm trying to follow your argument.

We know that Charlie never signed the written waiver form. So the last clause of Rule 1.9(a): "unless the former client gives informed consent, confirmed in writing." was clearly not met.

I don't see how that's not a violation of Rathbaum's ethical duty. Judge Everett certainly seems to agree. He wrote this in his order: "The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar." (emphasis added)

For what it's worth here's the ABA's formal opinion of "Conflicts Involving Materially Adverse Interests", issued on February 10, 2021.

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-497.pdf

“Shall not” means it’s not permissible, the way I interpret it. As for “are materially adverse”, well, generally the client doesn’t make that decision, the attorney is supposed to when deciding whether to take that representation. How can an attorney make that decision in an objective manner given his loyalty to both his present and former client?

 

[Going Rogue]

I'm no attorney, but I'm trying to follow your argument.

We know that Charlie never signed the written waiver form. So the last clause of Rule 1.9(a): "unless the former client gives informed consent, confirmed in writing." was clearly not met.

I don't see how that's not a violation of Rathbaum's ethical duty. Judge Everett certainly seems to agree. He wrote this in his order: "The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar." (emphasis added)

For what it's worth here's the ABA's formal opinion of "Conflicts Involving Materially Adverse Interests", issued on February 10, 2021.

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-497.pdf

Per Rashbaum he ‘thought’ he had a written waiver. I will agree the fact that he didn’t may be careless and not a good look, BUT not getting the signed waiver is not a violation of his ‘ethical duty’ – 'if' it was required and was not procured it’s an administrative error – nothing to do with ethics. He said he thought he had a signed waiver – if he lied to the court that’s a different matter – but, personally, I don’t think he lied because he even stated he had one in his STS interview and we can’t prove he lied. It was a careless oversight.

To clarify my argument, per Rule 1.9 a ‘signed’ waiver is required ‘IF’ you are representing clients that have interests that are ‘materially adverse’. By that statement had Rashbaum had that ‘signed’ waiver (which he ‘thought’ he had), his representation was 100% permissible as per the Americium Bar Association – regardless of anyone’s opinion. The argument that his representation was potentially going to cause issues is different argument and one that obviously was a concern of Judge Everett from the onset.

The point I’m not getting across effectively is that based on how I interpret Rule 1.9, if your client’s interests are NOT materially adverse you do NOT need a written waiver. Client’s interests being ‘materially adverse’ is something that can be up for interpretation depending on the circumstances. I do not believe Rule 1.9 mean ‘clients’ being represented by the same counsel that were part of the same crime have interests that are ALWAYS materially adverse.

The ABA even states in Rule 1.9:

“the interests of a current client are “materially adverse” to those of a former client or prospective client. Some materially adverse situations are typically clear”

The above statement alone supports my interpretation of Rule 1.9 that clients interests bring ‘materially adverse’ is not always clear and its up for interpretation on a case-by-case basis.

 

[ch_13]

The point I’m not getting across effectively is that based on how I interpret Rule 1.9, if your client’s interests are NOT materially adverse you do NOT need a written waiver. Client’s interests being ‘materially adverse’ is something that can be up for interpretation depending on the circumstances. I do not believe Rule 1.9 mean ‘clients’ being represented by the same counsel that were part of the same crime have interests that are ALWAYS materially adverse.

snipped.

So, if your interpretation of the rule is correct and there was no material adversity, then why did Ufferman's motion torpedo the trial? Why couldn't Rashbaum just tell the judge that they wouldn't be pointing the finger at Charlie? You seem to be arguing for a kind of Schrödinger's adversity, where you don't know if the adversity exists until the trial is conducted. That may work in quantum physics, but not in the law. Either there is an adversity, and Charlie needs to waive it or there isn't one and any objection raised by Charlie is irrelevant.

If you look at that ABA opinion, it looks like the edge cases that they are talking about are times when the former client is a non-party, non-witness in the new case. (See National Medical Enterprises, Inc. v. Godfrey.) However, in this case, Charlie is a witness. Donna is accused of conspiring with him. @amicuscurie is right. Accused co-conspirators always have interests that are materially adverse, and no trial judge would permit them to share a lawyer without a written waiver. (I'd be most interested if you could find a case to the contrary.)

 

[IQuestion]

snipped for focus: Per Rashbaum he ‘thought’ he had a written waiver. I will agree the fact that he didn’t may be careless and not a good look, BUT not getting the signed waiver is not a violation of his ‘ethical duty’ – 'if' it was required and was not procured it’s an administrative error – nothing to do with ethics. He said he thought he had a signed waiver – if he lied to the court that’s a different matter – but, personally, I don’t think he lied because he even stated he had one in his STS interview and we can’t prove he lied. It was a careless oversight....

Personally I think he did lie. Ergo the judge's scathing rebuke. Failing to get a signature from a man who is appealing a LWOP sentence sounds pretty darned cavalier. And not just any convict, the convict who paid him tens of thousands of dollars to provide a comprehensive defense including all pertinent documents and filings. As a matter of fact, his STS interview after CA's conviction was shocking. WTTE "I'm not surprised the jury came back with a guilty verdict so quickly." So what is he saying? Did his phenominal reputation as a "closer" fall on deaf ears? IMO getting signatures from clients was just as easy as endorsing the backs of checks he received. Priorities?

 

[amicuscurie]

snipped.

So, if your interpretation of the rule is correct and there was no material adversity, then why did Ufferman's motion torpedo the trial? Why couldn't Rashbaum just tell the judge that they wouldn't be pointing the finger at Charlie? You seem to be arguing for a kind of Schrödinger's adversity, where you don't know if the adversity exists until the trial is conducted. That may work in quantum physics, but not in the law. Either there is an adversity, and Charlie needs to waive it or there isn't one and any objection raised by Charlie is irrelevant.

If you look at that ABA opinion, it looks like the edge cases that they are talking about are times when the former client is a non-party, non-witness in the new case. (See National Medical Enterprises, Inc. v. Godfrey.) However, in this case, Charlie is a witness. Donna is accused of conspiring with him. @amicuscurie is right. Accused co-conspirators always have interests that are materially adverse, and no trial judge would permit them to share a lawyer without a written waiver. (I'd be most interested if you could find a case to the contrary.)

Schroedinger’s adversity! I like it!

 

[Going Rogue]

So, if your interpretation of the rule is correct and there was no material adversity, then why did Ufferman's motion torpedo the trial? Why couldn't Rashbaum just tell the judge that they wouldn't be pointing the finger at Charlie? You seem to be arguing for a kind of Schrödinger's adversity, where you don't know if the adversity exists until the trial is conducted. That may work in quantum physics, but not in the law. Either there is an adversity, and Charlie needs to waive it or there isn't one and any objection raised by Charlie is irrelevant.

If you look at that ABA opinion, it looks like the edge cases that they are talking about are times when the former client is a non-party, non-witness in the new case. (See National Medical Enterprises, Inc. v. Godfrey.) However, in this case, Charlie is a witness. Donna is accused of conspiring with him. @amicuscurie is right. Accused co-conspirators always have interests that are materially adverse, and no trial judge would permit them to share a lawyer without a written waiver. (I'd be most interested if you could find a case to the contrary.)

Why did Uffermans motion torpedo the trial?

Very simple, Ufferman’s motion filed on Sept 16th formally and officially notified the court that Charlie does NOT waive the conflict of interest regarding his attorney-client communication with Rashbaum. Obviously based on that motion, Rashbaum had absolutely no choice but to withdraw. Prior to that motion, EVERYBODY was working under the understanding that Charlie and Donna BOTH waived the conflict of interest – INCLUDING Judge Everett and the Prosecution! Had Ufferman NOT filed that motion, Donna’s trial would have started as scheduled. In that motion Ufferman also essentially ‘warned’ the court that if an ‘ethical wall’ did not exist between Rashbaum and ‘the rest’ of Donna's legal team, that Charlie should not be subject to cross-examination by ANY member of Donna’s legal team.

I respectfully don’t agree with your last point. Co-conspirators do not 'always' have interests that are materially adverse. I’m sure in ‘many’ or ‘most’ cases their interests are materially adverse, but not ‘always’. Please explain why the rule specifically states that “sometimes it’s not clear if their interests are materially adverse” - as I said previously that excerpt from the rule supports my interpretation that they are not always materially adverse.

 

[amicuscurie]

Why did Uffermans motion torpedo the trial?

Very simple, Ufferman’s motion filed on Sept 16th formally and officially notified the court that Charlie does NOT waive the conflict of interest regarding his attorney-client communication with Rashbaum. Obviously based on that motion, Rashbaum had absolutely no choice but to withdraw. Prior to that motion, EVERYBODY was working under the understanding that Charlie and Donna BOTH waived the conflict of interest – INCLUDING Judge Everett and the Prosecution! Had Ufferman NOT filed that motion, Donna’s trial would have started as scheduled. In that motion Ufferman also essentially ‘warned’ the court that if an ‘ethical wall’ did not exist between Rashbaum and ‘the rest’ of Donna's legal team, that Charlie should not be subject to cross-examination by ANY member of Donna’s legal team.

I respectfully don’t agree with your last point. Co-conspirators do not 'always' have interests that are materially adverse. I’m sure in ‘many’ or ‘most’ cases their interests are materially adverse, but not ‘always’. Please explain why the rule specifically states that “sometimes it’s not clear if their interests are materially adverse” - as I said previously that excerpt from the rule supports my interpretation that they are not always materially adverse.

The point is not that they always have interests that are adverse. They might not. But where the same attorney represents both parties, that attorney can never objectively determine whether their interests are adverse. Why? Because the attorney is ethically prohibited from offering a defense for one that is adverse to the interests of the other.

Thus, even if he says he’s offering a defense which is great and wonderful and doesn’t place either one adverse to the other, we can’t be sure it’s actually the best defense for either of them.

Sure, they “may” have interests that are not adverse in that situation. But as long as they have the same lawyer, there would be no way to determine whether that is in fact true.

 

[I am not Sherlock H.]

IANAL…. so would be helpful if one weighed in on this. Maybe some already have here and I haven’t followed. But I can also happily wait until trial for DA and that disposition. And similarly charges for any others sought for prosecution in the case of the murder of DM.

As to ‘materially adverse’…… CA has already been found guilty. I presume DA would want a sound defense in hopes of not being found guilty of any charged offenses. And in one estimation those needs might be diametrically at odds? Unless the objective might be to have another convicted for the crime. Again IANAL and will not presume to interpret or apply FL law or statutes.

It would seem that the court and the FL state Bar Board Disciplinary Review Committee and Division of Lawyer Regulation should investigate the attorney DR believed to have had an ethical misjudgment (or words to that effect) in his representation of two different clients in this case. Subpoena evidence and have the lawyer provide the waiver in discussion. And get his statements under oath and on the record. IIUC that attorney has already made some representations on this in court before a judge. MOO

 

[ch_13]

I respectfully don’t agree with your last point. Co-conspirators do not 'always' have interests that are materially adverse. I’m sure in ‘many’ or ‘most’ cases their interests are materially adverse, but not ‘always’.

@amicuscurie above states it better than me.

How can Rashbaum ever discuss the case with DA and say, "One possible defense is to say that you were just doing what Charlie told you. He may have been involved in the murder, you don't actually know."

Even if in the end they decide not to throw Charlie under the bus, there's no way for Rashbaum have an open and honest discussion with Donna about it without breaching his duty to his ex-client. And his inability to do that affects Donna's case.

Please explain why the rule specifically states that “sometimes it’s not clear if their interests are materially adverse” - as I said previously that excerpt from the rule supports my interpretation that they are not always materially adverse.

And for the record, the quote in your post (“sometimes it’s not clear if their interests are materially adverse”) does not exist in Rule 1.9. I've posted the whole thing below in its entirety. I'm not sure where you got that quote from. Is it a factual quote from a primary source, or is that your interpretation that you put in quotes for some reason?

Rule 1.9: Duties to Former Clients​

Client-Lawyer Relationship​

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/

 

[Going Rogue]

The point is not that they always have interests that are adverse. It’s that having the same lawyer means that the question of whether their interests might be adverse can never even come up in discussions with their attorney. They essentially are bound to offer a defense which doesn’t hurt either of them in that situation. Sure, they “may” have interests that are not adverse in that situation. But, let’s say that they say their interests are not adverse, or their lawyer says so. How us the court or the client supposed to know if this is true, when the same lawyer represents them both and would be breaching his duty to one by even suggesting that the interests of the other might be adverse?

Is your argument whether it puts either client in a compromising position and may limit possible defenses OR whether Rashbaum representing Donna was admissible? I agree they were both 'potentially' compromised and that’s exactly why Judge Everett raised his concerns in every pretrial hearing about the potential conflict. I’m not debating how or if they were both compromised based on Rashbaum representing both parties nor is it the point I was raising.

 

[amicuscurie]

Is your argument whether it puts either client in a compromising position and may limit possible defenses OR whether Rashbaum representing Donna was admissible? I agree they were both 'potentially' compromised and that’s exactly why Judge Everett raised his concerns in every pretrial hearing about the potential conflict. I’m not debating how or if they were both compromised based on Rashbaum representing both parties nor is it the point I was raising.

It may have been permissible if Rash had a signed waiver from both of them, however it appears that said waiver would always have been subject to rescission.

 

[Going Rogue]

@amicuscurie above states it better than me.

How can Rashbaum ever discuss the case with DA and say, "One possible defense is to say that you were just doing what Charlie told you. He may have been involved in the murder, you don't actually know."

Even if in the end they decide not to throw Charlie under the bus, there's no way for Rashbaum have an open and honest discussion with Donna about it without breaching his duty to his ex-client. And his inability to do that affects Donna's case.



And for the record, the quote in your post (“sometimes it’s not clear if their interests are materially adverse”) does not exist in Rule 1.9. I've posted the whole thing below in its entirety. I'm not sure where you got that quote from. Is it a factual quote from a primary source, or is that your interpretation that you put in quotes for some reason?

Rule 1.9: Duties to Former Clients​

Client-Lawyer Relationship​

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/

Re your question, it wasn’t a direct quote (but it was close and had the same meaning) and in error I referenced Rule 1.9 but I got it from the American Bar Association formal opinion doc you previously referenced on “Conflicts Involving Materially Adverse Interests”

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-497.pdf

See third sentence in opening paragraph (page1):

“Some materially adverse situations are typically clear” -- I interpret that to mean they don’t always exist

Also, I cant state the point more clearly than its stated in the conclusion of the doc (see last page):

IV. Conclusion

“Material adverseness” under Rule 1.9(a) and Rule 1.18(c) exists where a lawyer is negotiating or
litigating against a former or prospective client or attacking the work done for the former client on behalf of a current client in the same or a substantially related matter. It also exists in many but not all instances....