SCR 20:1.9. 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 a writing signed by the client.

(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

sub. (c) and SCR 20:1.6 that is material to the matter; unless the former

client gives informed consent, confirmed in a writing signed by the client.

(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.

WISCONSIN COMMENT

The Wisconsin Supreme Court Rule differs from the Model Rule in requiring

informed consent to be confirmed in a writing "signed by the client."

ABA COMMENT

ire 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.

WISCONSIN COMMENT

The Wisconsin Supreme Court Rule differs from the Model Rule in requiring

informed consent to be confirmed in a writing "signed by the client."

ABA 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

equent 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 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

stion 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.

[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

n 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.

[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

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.