Rule 32:1.9. 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 32:1.6 and 32:1.9(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 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 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 32:1.11.

[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 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.

[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 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. 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

ng 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.

Lawyers Moving Between Firms

[4] 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.

[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual

knowledge of information protected by rules 32:1.6 and 32:1.9(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 32:1.10(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

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 32:1.6 and 32:1.9(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 32:1.0(e). With regard to the effectiveness of an advance waiver, see comment

[22] to rule 32:1.7. With regard to disqualification of a firm with which a lawyer is or was formerly

associated, see rule 32:1.10.