Rule 1.9. Duties to Former Clients

RPC 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 that 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.

[Adopted effective September 1, 1985; Amended effective September 1, 2006.]

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. 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.

[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

tary 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 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

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. 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] [Washington revision] 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(e) and (b) for the restrictions on a

firm when a lawyer initiates an association with the firm or has terminated an 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.

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] [Washington revision] 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 1.0A(e). With regard to disqualification of a firm

with which a lawyer is or was formerly associated, see Rule 1.10.

[Comment 9 amended effective April 14, 2015.