Rule 1.9. Duties to former client. (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.

COMMENTARY

[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

uire 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.

COMMENTARY

[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. Similar

considerations can apply to the reassignment of military lawyers between defense and

prosecution functions within the same military jurisdictions

ntly 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. In the case of an organizational client, general knowledge of the

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

epresented 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. 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

pends 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 [21] to Rule 1.7. With regard to

disqualification of a firm with which a lawyer is or was formerly associated, see Rule

1.10.