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 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 or secrets of a former client 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 or secrets of a former client except as these

Rules would permit or require with respect to a client.

(d)

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.

COMMENT

rmit or require with respect to a client.

(d)

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.

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. 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

quent 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.

[3]

In accordance with prior Maine law, 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

zoning 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.

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

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.

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. 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.

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. With regard to disqualification of a firm with which a lawyer is or was

formerly associated, see Rule 1.10.