Rule 1.9. Duties to Former Clients

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

inwhichthatperson’sinterestsaremateriallyadverse

to the interests of the former client unless the

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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.

(P.B. 1978-1997, Rule 1.9.) (Amended June 26, 2006, to

take effect Jan. 1, 2007.)

COMMENTARY: 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

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. Nor could a lawyer who has represented

multiple clients in a matter represent one of the clients against

the interest of 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 last

paragraph of this Commentary, below. 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 considerations 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

epresentation involves a

position adverse to the prior client. Similar considerations 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.

Matters are ‘‘substantially related’’ for purposes of this Rule

if they involve the same transaction or legal dispute or if there

otherwise is a substantial risk that confidential factual information

as would normally have been obtained in the prior representation

would materially advance the client’s position in the subsequent

Rule 1.10

matter. For 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. 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

se 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.Inthecase of anorganizationalclient, 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. 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

ly 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.

Subsection (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 information relating to 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 subsection (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

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

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Copyrighted by the Secretary of the State of the State of Connecticut

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. In such an inquiry, the burden of proof rests upon

the firm whose disqualification is sought.

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).

Subsection (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

doesnot precludethelawyerfrom usinggenerallyknowninformation 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 subsections

(a) and (b). See Rule 1.0 (f). With regard to the effectiveness of

an advance waiver, see Commentary to Rule 1.7. With regard

to disqualification of a firm with which a lawyer is or was formerly

associated, see Rule 1.10.