Rule 1.9. Duties to former clients

« Rule 1.9. »

(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.

COMMENT

[1] 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

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. 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 [9]. Current and former government

lawyers must comply with this Rule to the extent required by Rule 1.11.

[2] 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 there assignment 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

entation involves a position adverse to the prior client.

Similar considerations can apply to there assignment 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.

[3] 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 matter. For example, a lawyer who

has represented a business person 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

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. 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.

[4] 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

ion 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.

[5] 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

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.

[6] 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

n 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.

[6] 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. In such an inquiry,

the burden of proof should rest upon the firm whose disqualification is

sought.

[7] 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).

[8] 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.

[9] 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

1.0(e). With regard to the effectiveness of an advance waiver, see

Comment [22] to Rule 1.7

sing

generally known information about that client when later representing

another client.

[9] 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

1.0(e). With regard to the effectiveness of an advance waiver, see

Comment [22] to Rule 1.7. With regard to disqualification of a firm with

which a lawyer is or was formerly associated, see Rule 1.10.

NOTES TO DECISIONS

Client relations.

— Conflicts of interest.

— Disqualification.

— “Former client status”.

Analysis

— Shareholders’ derivative suits.

Professional conduct.

— Candor to the tribunal.

Client relations.

— Conflicts of interest.

Because the defendant did not object to a law firm’s representation of

the plaintiff during the negotiations of a merger agreement, and failed to

point to information or confidences obtained by the firm in its prior work

for the defendant that would have a material influence on the proceedings,

there was no basis to disqualify the firm. Rohm & Haas Co. v. Dow Chem.

Co., 2009 Del. Ch. LEXIS 249 (Del. Ch. Feb. 12, 2009).

Public defender’s office failed to prove an actual conflict of interest

existed in the office’s prior representation of a State’s witness and

defendant, and was not entitled to withdraw as counsel for defendant,

because: (1) the office’s representation of the witness and defendant were

not substantially related; and (2) the witness was represented by a

different public defender than those representing defendant. State v. Kent,

2014 Del. Super. LEXIS 558 (Del. Super. Ct. Sept. 3, 2014)

s prior representation of a State’s witness and

defendant, and was not entitled to withdraw as counsel for defendant,

because: (1) the office’s representation of the witness and defendant were

not substantially related; and (2) the witness was represented by a

different public defender than those representing defendant. State v. Kent,

2014 Del. Super. LEXIS 558 (Del. Super. Ct. Sept. 3, 2014).

Law firm who had helped a corporate debtor sell a portfolio of leases,

and who was later hired by real estate professionals, was not disqualified

from representing the professionals in an adversary proceeding filed by

California limited liability companies (LLCs) alleging that the

professionals committed fraud to obtain a higher price for the portfolio

merely because the firm had represented the LLCs in other cases; the

LLCs failed to show that there was a substantial relationship between

cases where the law firm served as the LLCs’ counsel and the adversary

proceeding the LLCs filed against the debtors’ professionals, or that the

law firm obtained information about the LLCs while representing them in

other cases that it could not use without violating Law. Prof. Conduct R.

1.9. Alamo Group, LLC v. A&G Realty Partners, LLC, 2015 Bankr. LEXIS

467 (Bankr. D. Del. Feb. 2, 2015), dismissed without prejudice, 529 B.R.

825 (Bankr. D. Del. 2015).

Trust beneficiaries’ defense of counsel’s conflict of interest was waived

because the beneficiaries failed to raise this issue as a defense to the

trustees’ application for attorneys’ fees in a timely manner, despite

multiple opportunities to do so. In re Hawk Mt. Trust, 2015 Del. Ch.

LEXIS 236 (Del. Ch. Sept. 8, 2015).

— Disqualification.

An attorney’s representation of a client who was suing a former client

on a matter substantially related to one on which the attorney previously

worked was an ethical violation resulting in the attorney’s disqualification.

Webb v. E.I. Du Pont De Nemours & Co., 811 F. Supp. 158 (D. Del. 1992)

o do so. In re Hawk Mt. Trust, 2015 Del. Ch.

LEXIS 236 (Del. Ch. Sept. 8, 2015).

— Disqualification.

An attorney’s representation of a client who was suing a former client

on a matter substantially related to one on which the attorney previously

worked was an ethical violation resulting in the attorney’s disqualification.

Webb v. E.I. Du Pont De Nemours & Co., 811 F. Supp. 158 (D. Del. 1992).

Defendant’s motion to disqualify plaintiff’s counsel under the former

version of this rule was denied, as defendant had no reasonable basis to

conclude that an attorney-client relationship had been established with

plaintiff’s counsel at an earlier meeting, and defendant failed to show

prejudice from disclosure of information exchanged at the meeting

because defendant later disclosed much of this information in a proxy

statement and in discussions with plaintiff. Benchmark Capital Ptnrs. IV,

L.P. v. Vague, 2002 Del. Ch. LEXIS 108 (Del. Ch. Sept. 3, 2002).

Trial court denied a motion to disqualify plaintiff’s counsel, as prior

representation of a defendant by the same law firm involved a case that

was not at all substantially related; any alleged release of confidential

information was deemed minimal by the trial court. Sanchez-Caza v. Estate

of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16, 2004).

Violation of Law. Prof. Conduct R. 1.9 does not require automatic

disqualification; a court reviewing the motion must weigh the effect of

any alleged conflict upon the fairness and integrity of the proceedings

any alleged release of confidential

information was deemed minimal by the trial court. Sanchez-Caza v. Estate

of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16, 2004).

Violation of Law. Prof. Conduct R. 1.9 does not require automatic

disqualification; a court reviewing the motion must weigh the effect of

any alleged conflict upon the fairness and integrity of the proceedings

before disqualifying the challenged counsel. Sanchez-Caza v. Estate of

Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16, 2004).

Party seeking to disqualify opposing council based on council’s prior

representation of it is not required to point to specific confidential

information that it believes the council possesses. Acierno v. Hayward,

2004 Del. Ch. LEXIS 138 (Del. Ch. July 1, 2004).

State Department of Transportation (DOT) presented evidence that

arguably supported disqualification of plaintiff’s lawyer based on a

conflict of interest (in that the attoney inevitably would be placed in a

position

where

confidential

information

obtained

from

prior

representation of DOT would be used to its disadvantage in the litigation)

under Law Prof. Conduct R. 1.9.; the threat to the fair and efficient

administration of justice was sufficiently palpable to support the court’s

exercise of jurisdiction over DOT’s motion to disqualify. Acierno v.

Hayward, 2004 Del. Ch. LEXIS 138 (Del. Ch. July 1, 2004).

In a suit for a declaratory judgment as to a lessee’s obligations under a

lease, counsel for the lessor was not subject to disqualification under

Model Rules Prof’l Conduct R. 1.9 because: (1) counsel’s prior

representation of the lessee was limited to regulatory findings and

terminated upon the closing of a transfer of stock; (2) the nature of the

current litigation was a landlord-tenant dispute that was unrelated to the

prior representation; and (3) the information provided to counsel in the

prior representation was not likely to be relevant to the current litigation

because: (1) counsel’s prior

representation of the lessee was limited to regulatory findings and

terminated upon the closing of a transfer of stock; (2) the nature of the

current litigation was a landlord-tenant dispute that was unrelated to the

prior representation; and (3) the information provided to counsel in the

prior representation was not likely to be relevant to the current litigation.

Integrated Health Servs. v. THCI, Co. LLC, 327 B.R. 200 (D. Del. 2005).

In a real estate dispute, the mere fact that counsel for one party had once

advised a long-dead partner of an opposing party in entirely unrelated

matters was not grounds for disqualification of counsel; there was simply

no basis for supposing any impropriety or unfairness. Hendry v. Hendry,

2005 Del. Ch. LEXIS 187 (Del. Ch. Dec. 1, 2005).

Where attorney disqualification was sought under Model Rules of Prof’l

Conduct R. 1.9, which Delaware had adopted, plaintiff’s argument that

no conflict arose from the representation of defendant by plaintiff’s

former attorney, until the earlier case involving plaintiff was brought up in

a deposition, failed, as Rule 1.9 covered more than the disclosure of

confidential information. Conley v. Chaffinch, 431 F. Supp. 2d 494 (D.

Del. 2006).

In a custody modification proceeding between parents of a minor child,

a father’s request to disqualify the mother’s counsel due to counsel’s prior

representation of the father’s mother was denied, as there was no conflict

of interest under Law. R. Prof. Conduct 1.7(a) and Law R. Prof

e than the disclosure of

confidential information. Conley v. Chaffinch, 431 F. Supp. 2d 494 (D.

Del. 2006).

In a custody modification proceeding between parents of a minor child,

a father’s request to disqualify the mother’s counsel due to counsel’s prior

representation of the father’s mother was denied, as there was no conflict

of interest under Law. R. Prof. Conduct 1.7(a) and Law R. Prof. Conduct

1.9(a) where counsel had previously represented the father’s mother in

estate and divorce matters, the representation for the most part had

occurred prior to the child’s birth, counsel had not met the father during

representation of the mother, and a balancing of the competing interests

was in favor of the mother’s retention of her counsel rather than the

possible minimal prejudice that the father might suffer; the father failed to

show that he would suffer prejudice as a result of the continued

representation, and accordingly, he did not meet his burden of showing the

need for disqualification by clear and convincing evidence. G. M. v. E. T.

W., 2006 Del. Fam. Ct. LEXIS 153 (Del. Fam. Ct. Sept. 12, 2006).

During challenge to merger process, defendant merger parties moved to

disqualify the law firm retained to advise plaintiff merger challengers

because the law firm had access to confidential information regarding 1 of

the merger parties from a prior merger case; the court declined to

determine whether a conflict of interest existed, but denied the motion to

disqualify due to the delay in raising the issue, plus the harm that would

result to 1 merger challenger if forced to change law firms. Express

Scripts, Inc. v. Crawford, 2007 Del. Ch. LEXIS 18 (Del. Ch. Jan. 25, 2007)

dential information regarding 1 of

the merger parties from a prior merger case; the court declined to

determine whether a conflict of interest existed, but denied the motion to

disqualify due to the delay in raising the issue, plus the harm that would

result to 1 merger challenger if forced to change law firms. Express

Scripts, Inc. v. Crawford, 2007 Del. Ch. LEXIS 18 (Del. Ch. Jan. 25, 2007).

Counsel representing the wife in a divorce proceeding did not have to be

disqualified from that representation where a paralegal in the husband’s

firm stopped working for that firm and went to work for the law firm

representing the wife as: (1) the paralegal had performed a minimal amount

of work on the case; (2) the paralegal and wife’s counsel had maintained

a “cone of silence” on the matter by not speaking about it, minimizing

the possibility that confidential information could be passed along; and

(3) no showing had been made regarding a breach of client

confidentiality in violation of Law R. Prof. Conduct 1.9(b) or 1.10(c). In re

Marriage of C., 2008 Del. Fam. Ct. LEXIS 124 (Del. Fam. Ct. Oct. 6,

2008).

Attorney who previously represented a doctor in a medical negligence

claim against the doctor was disqualified from representing a patient and

that patient’s spouse in their medical negligence claim against the doctor,

as there was an irreconcilable conflict of interest under Law. R. Prof.

Conduct 1.9(a); the 2 actions were substantially related and the gravamen

of the claims were the same. Fernandez v. St. Francis Hosp., 2009 Del.

Super. LEXIS 287 (Del. Super. Ct. Aug. 3, 2009).

In a patent infringement suit against an electronics company, an

attorney and the attorney’s firm were disqualified under Law. R. Prof.

Conduct 1.9 from representing plaintiff where: (1) the attorney had

represented the company in an earlier suit, while working at a second firm;

e claims were the same. Fernandez v. St. Francis Hosp., 2009 Del.

Super. LEXIS 287 (Del. Super. Ct. Aug. 3, 2009).

In a patent infringement suit against an electronics company, an

attorney and the attorney’s firm were disqualified under Law. R. Prof.

Conduct 1.9 from representing plaintiff where: (1) the attorney had

represented the company in an earlier suit, while working at a second firm;

(2) the subject matter of the earlier suit concerned the same memory chip

technology at issue in instant suit; (3) the appearance of impropriety was

reflected in the fact that the attorney’s representation of the company was

not thoroughly vetted at the time the attorney began working at the firm;

(4) the firm’s conflict review was limited to what amounted to a word

search; and (5) the company was not alerted to the attorney’s representation

of plaintiff in the case at bar. Apeldyn Corp. v. Samsung Elecs. Co.., 660

F. Supp. 2d 557 (D. Del. 2009).

Even if there was a conflict between counsel’s present and former clients’

interests pursuant to Law. Prof. Conduct R. 1.9(a), where defendants

failed to show a violation so extreme that it called into question the

fairness or the efficiency of the proceeding involving the validity of a

corporate loan, disqualification of counsel under Ch. Ct. R. 170 was not

warranted. Manning v. Vellardita, 2012 Del. Ch. LEXIS 59 (Del. Ch. Mar.

28, 2012).

Nonparties were not entitled to disqualify an attorney or a law firm

from representing a seized insurer based on the attorney’s former

representation of 1 of the nonparties, a limited liability company (LLC)

that purportedly owned 99% of the insurer, because: (1) the firm would

have acquired knowledge of who controlled the LLC through

representation of the insurer; and (2) vague and unsupported allegations of

what the attorney “knew” were insufficient to justify disqualification. In re

Rehab. of Indem. Ins. Corp., 2014 Del. Ch. LEXIS 23 (Del. Ch. Feb. 19,

2014).

limited liability company (LLC)

that purportedly owned 99% of the insurer, because: (1) the firm would

have acquired knowledge of who controlled the LLC through

representation of the insurer; and (2) vague and unsupported allegations of

what the attorney “knew” were insufficient to justify disqualification. In re

Rehab. of Indem. Ins. Corp., 2014 Del. Ch. LEXIS 23 (Del. Ch. Feb. 19,

2014).

No conflict of interest existed in a slip and fall case because counsel’s

previous representation of the property owner in an unrelated case was not

shown to create a substantial risk of disclosure of material confidential

information; indirect advantage from knowing the owner’s settlement

philosophy, and a likelihood the owner had mentioned the slip and fall

incident, would be mitigated by an insurer’s assuming the defense. Harper

v. Beacon Air, Inc., 2017 Del. Super. LEXIS 99 (Del. Super. Ct. Mar. 2,

2017).

Lender was not entitled to disqualify the borrower’s counsel due to

failure to show by clear and convincing evidence the existence of any

prejudice in the fairness of the proceedings or that an alleged conflict

existed; an alleged corporate takeover of the borrower through the exercise

of the lender’s alleged rights under the pledge agreement did not form a

proper basis for counsel’s disqualification. Triumph Mortg. Corp. v.

Glasgow Citgo, Inc., — A.3d —, 2018 Del. Super. LEXIS 178 (Del. Super.

Ct. Apr. 19, 2018)

stence of any

prejudice in the fairness of the proceedings or that an alleged conflict

existed; an alleged corporate takeover of the borrower through the exercise

of the lender’s alleged rights under the pledge agreement did not form a

proper basis for counsel’s disqualification. Triumph Mortg. Corp. v.

Glasgow Citgo, Inc., — A.3d —, 2018 Del. Super. LEXIS 178 (Del. Super.

Ct. Apr. 19, 2018).

Defendant’s motion to disqualify counsel based on a conflict of interest

was granted because: (1) the law firm employed by plaintiff had

previously represented the ultimate beneficiary of the insurance policy

issued by plaintiff; (2) plaintiff’s interests were directly adverse to the

ultimate beneficiary’s interests; (3) the law firm’s inquiry into the ultimate

beneficiary’s practices in 2010 potentially uncovered conduct that informed

the truth or falsity of the allegations in the current suit, constituting the

same matter and not merely a similar matter; (4) no purported consent

from defendant relieved the law firm of its obligations under this rule;

and (5) the prejudice to defendant outweighed the inconvenience to

plaintiff. Sun Life Assur. Co. of Can. v. Wilmington Sav. Fund Soc’y, F.S.B.,

— A.3d —, 2019 Del. Super. LEXIS 663 (Del. Super. Ct. Dec. 19, 2019).

Trial court adhered to its prior determination to disqualify plaintiff’s

counsel because: (1) counsel previously represented the ultimate

beneficiary of a life insurance policy issued by plaintiff; (2) counsel’s

work product and even attorney testimony, were potentially pivotal

evidence; and (3) given that counsel argued that its former client, the

beneficiary, was illegally wagering on the lives of others, the evidence

amply demonstrated materially adverse interests between counsel’s former

previously represented the ultimate

beneficiary of a life insurance policy issued by plaintiff; (2) counsel’s

work product and even attorney testimony, were potentially pivotal

evidence; and (3) given that counsel argued that its former client, the

beneficiary, was illegally wagering on the lives of others, the evidence

amply demonstrated materially adverse interests between counsel’s former

client and plaintiff. Sun Life Assur. Co. v. Wilmington Sav. Fund Soc’y, —

A.3d —, 2020 Del. Super. LEXIS 158 (Del. Super. Ct. Apr. 9, 2020),

vacated, dismissed, — A.3d —, 2021 Del. Super. LEXIS 294 (Del. Super.

Ct. 2021).

— “Former client status”.

In order to disqualify an attorney more facts of a relationship are needed

than a simple statement of prior work done in a superficially similar area.

Satellite Fin. Planning Corp. v. First Nat’l Bank, 652 F. Supp. 1281 (D.

Del. 1987).

Attorney who represented a parent in a custody hearing violated this

Rule where the attorney had previously represented the opposing parent in

a custody matter involving the same child and no consent was obtained

from the opposing parent. In re Mekler, 689 A.2d 1171 (Del. 1996).

General information regarding a corporate client’s business practices is

not enough to deny representation by a present party’s chosen counsel;

knowledge of specific facts gained in a prior representation, relevant to the

matter in question, ordinarily will preclude representation. Sanchez-Caza

v. Estate of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept.

16, 2004)

1 (Del. 1996).

General information regarding a corporate client’s business practices is

not enough to deny representation by a present party’s chosen counsel;

knowledge of specific facts gained in a prior representation, relevant to the

matter in question, ordinarily will preclude representation. Sanchez-Caza

v. Estate of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept.

16, 2004).

An appropriate test for determining whether matters are substantially

related for conflict purposes involves a court considering the nature and

scope of the prior representation, the nature and scope of the present

lawsuit, and whether the client may have revealed relevant confidential

information to its counsel during the prior representation, and if so,

whether the confidential information could be used against the former

client in the current lawsuit; two matters may also be substantially related

if there 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 matter. Sanchez-Caza v.

Estate of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16,

2004).

— Shareholders’ derivative suits.

Counsel representing a shareholder class in a derivative suit was not

subject to being disqualified for advocating the adoption of a settlement

proposal to which some members of the class objected. In re M&F

Worldwide Corp. S’holders Litig., 799 A.2d 1164 (Del. Ch. 2002).

Plaintiffs, two directors of a family corporation and the corporation,

failed to prove third director’s use of long-time corporation and family

attorneys to defend against that director’s removal by shareholders in a

declaratory judgment action threatened to undermine fairness and integrity

of proceeding or violate Del. Law. R. Prof. Conduct 1.7, 1.9, 1.13(e), and

1.16(b)(1). Unanue v. Unanue, 2004 Del. Ch. LEXIS 37 (Del. Ch. Mar. 25,

2004)

and the corporation,

failed to prove third director’s use of long-time corporation and family

attorneys to defend against that director’s removal by shareholders in a

declaratory judgment action threatened to undermine fairness and integrity

of proceeding or violate Del. Law. R. Prof. Conduct 1.7, 1.9, 1.13(e), and

1.16(b)(1). Unanue v. Unanue, 2004 Del. Ch. LEXIS 37 (Del. Ch. Mar. 25,

2004).

In a derivative action, defendants’ assertions failed to demonstrate that

representation by the former chief legal counsel of a parent company was

substantially related to the instant lawsuit involving a sale of the parent’s

and non-wholly owned subsidiary’s assets, because the counsel was not

challenging a series of transactions in which counsel was a key participant,

but rather was challenging the allocation in a single transaction from

whose negotiations counsel was actively excluded; additionally, counsel

had a role as a member of the subsidiary in approving the transactions,

distinct from the role as counsel of the parent. Bakerman v. Sidney Frank

Importing Co., 2006 Del. Ch. LEXIS 180 (Del. Ch. Oct. 10, 2006).

Professional conduct.

— Candor to the tribunal.

Even though there was no cause to disqualify counsel or revoke

counsel’s admission pro hac vice status, where counsel failed to disclose a

colorable claim of conflict between former and present clients pursuant to

Law. Prof. Conduct R. 1.9(a), such evidenced a lack of candor to the court

and warranted referral to the disciplinary authorities. Manning v. Vellardita,

2012 Del. Ch. LEXIS 59 (Del. Ch. Mar. 28, 2012).

Del. Rules of Prof'l Conduct Rule 1.10