Rule 1.9. Duties to Former Clients

(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 confidences and secrets 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 confidences and secrets except as these Rules

would permit or require with respect to a client.

COMMENT

After termination of a client-lawyer relationship, a lawyer

has certain continuing duties with respect to confidentiality and

conflicts of interest and thus may not represent another client

except in conformity with this Rule. Under this Rule, for

example, a lawyer could not properly seek to rescind on behalf

of a new client a contract drafted on behalf of the former

client. So also a lawyer who has prosecuted an accused person

could not properly represent the accused in a subsequent civil

action against the government concerning the same transaction

ot represent another client

except in conformity with this Rule. Under this Rule, for

example, a lawyer could not properly seek to rescind on behalf

of a new client a contract drafted on behalf of the former

client. So also a lawyer who has prosecuted an accused person

could not properly represent the accused in a subsequent civil

action against the government concerning the same transaction.

Nor could a lawyer who has represented multiple clients in a

matter represent one of the clients against the others in the

same or a substantially related matter after a dispute arose

among the clients in that matter, unless all affected clients give

informed consent. See COMMENT. Current and former

government lawyers must comply with this Rule to the extent

required by Rule 1.11.

The scope of a “matter” for purposes of this Rule depends

on the facts of a particular situation or transaction. The

lawyer’s involvement in a matter can also be a question of

degree. When a lawyer has been directly involved in a specific

transaction, subsequent representation of other clients with

materially adverse interests in that transaction clearly is

prohibited. On the other hand, a lawyer who recurrently

handled a type of problem for a former client is not precluded

from later representing another client in a factually distinct

problem of that type even though the subsequent representation

involves a position adverse to the prior client. Similar consid-

erations can apply to the reassignment of military lawyers

between defense and prosecution functions within the same

military jurisdictions. 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.

“Substantially related” is defined in Rule 9.1

lient. Similar consid-

erations can apply to the reassignment of military lawyers

between defense and prosecution functions within the same

military jurisdictions. 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.

“Substantially related” is defined in Rule 9.1. As an

example, a lawyer who has represented a businessperson and

learned extensive private financial information about that

person may not then represent that person’s spouse in seeking

a divorce, because the matters are substantially related.

Similarly, a lawyer who has previously represented a client in

securing environmental permits to build a shopping center

would be precluded from representing neighbors seeking to

oppose rezoning of the property on the basis of environmental

considerations; however, the lawyer would not be precluded,

on the grounds of substantial relationship, from defending a

tenant of the completed shopping center in resisting eviction

for nonpayment of rent. Information that has been disclosed to

the public or to other parties adverse to the former client

ordinarily will not be disqualifying. Information acquired in a

prior representation may have been rendered obsolete by the

passage of time, a circumstance that may be relevant in

determining whether two representations are substantially

related. In the case of an organizational client, general

knowledge of the client’s policies and practices ordinarily will

not preclude a subsequent representation; on the other hand,

knowledge of specific facts gained in a prior representation

that are relevant to the matter in question ordinarily will

preclude such a representation. A former client is not required

to reveal the confidential information learned by the lawyer in

order to establish a substantial risk that the lawyer has

confidential information to use in the subsequent matter

esentation; on the other hand,

knowledge of specific facts gained in a prior representation

that are relevant to the matter in question ordinarily will

preclude such a representation. A former client is not required

to reveal the confidential information learned by the lawyer in

order to establish a substantial risk that the lawyer has

confidential information to use in the subsequent matter. A

conclusion about the possession of such information may be

based on the nature of the services the lawyer provided the

former client and information that would in ordinary practice

be learned by a lawyer providing such services.

Lawyers Moving Between Firms

When lawyers have been associated within a firm but then

end their association, the question of whether a lawyer should

undertake representation is more complicated. There are

several competing considerations. First, the client previously

represented by the former firm must be reasonably assured that

the principle of loyalty to the client is not compromised.

Second, the rule should not be so broadly cast as to preclude

other persons from having reasonable choice of legal counsel.

Third, the rule should not unreasonably hamper lawyers from

forming new associations and taking on new clients after

having left a previous association. In this connection, it should

be recognized that today many lawyers practice in firms, that

many lawyers to some degree limit their practice to one field

or another, and that many move from one association to

another several times in their careers. If the concept of

imputation were applied with unqualified rigor, the result

would be radical curtailment of the opportunity of lawyers to

move from one practice setting to another and of the

opportunity of clients to change counsel.

Paragraph (b) operates to disqualify the lawyer only when

the lawyer involved has actual knowledge of information

protected by Rules 1.6 and 1.9(c)

ir careers. If the concept of

imputation were applied with unqualified rigor, the result

would be radical curtailment of the opportunity of lawyers to

move from one practice setting to another and of the

opportunity of clients to change counsel.

Paragraph (b) operates to disqualify the lawyer only when

the lawyer involved has actual knowledge of information

protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with

one firm acquired no knowledge or confidences and secrets of

a particular client of the firm, and that lawyer later joined

another firm, neither the lawyer individually nor the second

firm is disqualified from representing another client in the

same or a related matter even though the interests of the two

clients conflict. See Rule 1.10(b) for the restrictions on a firm

once a lawyer has terminated association with the firm.

Application of paragraph (b) depends on a situation’s

particular facts, aided by inferences, deductions, or working

presumptions that reasonably may be made about the way in

which lawyers work together. A lawyer may have general

access to files of all clients of a law firm and may regularly

participate in discussions of their affairs; it should be inferred

that such a lawyer in fact is privy to all information about all

the firm’s clients. In contrast, another lawyer may have access

to the files of only a limited number of clients and participate

in discussions of the affairs of no other clients; in the absence

of information to the contrary, it should be inferred that such a

lawyer in fact is privy to information about the clients actually

served but not those of other clients.

Independent of the question of disqualification of a firm, a

lawyer changing professional association has a continuing duty

to preserve confidentiality of information about a client

formerly represented. See Rules 1.6 and 1.9(c)

formation to the contrary, it should be inferred that such a

lawyer in fact is privy to information about the clients actually

served but not those of other clients.

Independent of the question of disqualification of a firm, a

lawyer changing professional association has a continuing duty

to preserve confidentiality of information about a client

formerly represented. See Rules 1.6 and 1.9(c).

Paragraph (c) provides that information acquired by the

lawyer in the course of representing a client may not

subsequently be used or revealed by the lawyer to the

disadvantage of the client. However, the fact that a lawyer has

once served a client does not preclude the lawyer from using

generally known information about that client when later

representing another client.

The provisions of this Rule are for the protection of

former clients and can be waived if the client gives informed

consent, which consent must be confirmed in writing under

paragraphs (a) and (b). See Rule 9.1(g). With regard to the

effectiveness of an advance waiver, see COMMENT to Rule

1.7. With regard to disqualification of a firm with which a

lawyer is or was formerly associated, see Rule 1.10.