Rule 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 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 confidential 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 confidential 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

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. 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

epresentation 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

ng

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. Third, the rule should

not unreasonably hamper lawyers from forming new associations and taking on

new clients after having left a previous association

sly 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] 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 disquali-

fication is sought.

[6] 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)

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 disquali-

fication is sought.

[6] 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.

[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 confidential 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(c) and (f). Similarly,

although the Rule does not require that the writing be signed by the client,

obtaining the client’s signature is encouraged to further avoid disputes or

ambiguities. With regard to the effectiveness of an advance waiver, see Comment

[22] to Rule 1.7

aived if the client gives informed consent which consent must be confirmed

in writing under paragraphs (a) and (b). See Rule 1.0(c) and (f). Similarly,

although the Rule does not require that the writing be signed by the client,

obtaining the client’s signature is encouraged to further avoid disputes or

ambiguities. 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.

Definitional Cross-References

“Confirmed in writing” See Rule 1.0(c)

“Firm” See Rule 1.0(d)

“Informed Consent” See Rule 1.0(f)

“Knowingly” and “Known” See Rule 1.0(g)

“Writing” See Rule 1.0(o)