Rule 1.9. Duties to Former Clients

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.

(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.

(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.

Adopted July 1, 2009, effective January 1, 2010.

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 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

ed. 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.

[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 1.6 and 1.9(c). Thus, if a lawyer while with one firm

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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. 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.

[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. 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.

Adopted July 1, 2009, effective January 1, 2010.

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