Rule 1.9. DUTIES TO FORMER CLIENTS

(a)

Unless the former client gives informed consent, confirmed in writing, 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.

(b)

Unless the former client gives informed consent, confirmed in writing, 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 where both of the following apply:

(1)

the interests of the client are materially adverse to that person;

(2)

the lawyer had acquired information about the client that is protected

by Rules 1.6 and 1.9(c) and material to the matter.

(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 do either

of the following:

(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;

(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

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, confirmed in writing. 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

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. For a former government lawyer, “matter” is defined in Rule

1.11(e).

derations

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. For a former government lawyer, “matter” is defined in Rule

1.11(e).

[3]

See Rule 1.0(n) for a definition of “substantially related 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. 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

presentation; 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. 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.

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]

Division (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 division (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 lawyer whose

disqualification is sought.

iles 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 lawyer 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]

Division (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 divisions

(a) and (b). See Rule 1.0(f). With regard to the effectiveness of an advance waiver, see Comment

[33] to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly

associated, see Rule 1.10.

Comparison to former Ohio Code of Professional Responsibility

Rule 1.9 addresses the lawyer’s continuing duty of client confidentiality when the lawyer-client relationship ends. The rule articulates the substantial relationship test adopted by the

Supreme Court in Kala v. Aluminum Smelting & Refining Co., Inc. (1998), 81 Ohio St. 3d 1, citing

with approval Advisory Opinion 89-013 of the Board of Commissioners on Grievances and

Discipline, which also relied on the substantial relationship test to judge former client conflicts.

when the lawyer-client relationship ends. The rule articulates the substantial relationship test adopted by the

Supreme Court in Kala v. Aluminum Smelting & Refining Co., Inc. (1998), 81 Ohio St. 3d 1, citing

with approval Advisory Opinion 89-013 of the Board of Commissioners on Grievances and

Discipline, which also relied on the substantial relationship test to judge former client conflicts.

In Kala, the Court extended the confidentiality protection of DR 4-101 to former clients by

creating a presumption of shared confidences between the former client and lawyer [Rule 1.9(a)].

It further held that this presumption could be rebutted by evidence that the lawyer had no personal

contact with or knowledge of the former client matter [Rule 1.9(b)]. In doing so it clarified that

the DR 4-101(B) prohibition against using or revealing client confidences or secrets without

consent applied to former clients [Rule 1.9(c)].

Kala did not address the issue of what constitutes a substantial relationship, because the

lawyer in question switched sides in the same case. The comments are consistent with appellate

decisions, as well as with the Restatement (Third) of the Law Governing Lawyers §132 (2000).

The only change from current Ohio law is the requirement that conflict waivers be “confirmed in

writing,” consistent with other conflict provisions such as Rules 1.7 and 1.8.

Division (a) restates the substantial relationship test, which extends confidentiality

protection to clients the lawyer has formerly represented. This test presumes that the lawyer

obtained and cannot use information relating to the representation of the former client in the same

or substantially related matters, the first prong of the Kala test.

Division (b) applies where the lawyer’s firm (but not the lawyer personally) represented a

client, and requires that the former client show that the lawyer in question actually acquired

confidential information, the second prong of the Kala test.

use information relating to the representation of the former client in the same

or substantially related matters, the first prong of the Kala test.

Division (b) applies where the lawyer’s firm (but not the lawyer personally) represented a

client, and requires that the former client show that the lawyer in question actually acquired

confidential information, the second prong of the Kala test.

Division (c) provides that in either actual or law firm prior representation, the prohibitions

against use [Model Rule 1.8(b)] and disclosure (Model Rule 1.6) that protect current clients also

extend to former clients. This is the foundation of the Kala opinion, which extended the

prohibitions against use or disclosure of client confidences or secrets in DR 4-101(B) to former

clients.

Comparison to ABA Model Rules of Professional Conduct

Rule 1.9 is substantively identical to Model Rule 1.9. The definition of “substantially

related matter,” which appears in Comment [3] of the Model Rule is moved to Rule 1.0(n).