Conflicts of Interest · 12-18% of the exam
8.2.1Former-client conflicts (Rule 1.9)
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- Rule 1.9 — Former-client conflicts
Rule 1.9's test is objective, and the duty to a former client does not expire — though information can go stale enough that two matters are no longer substantially related (Comment [3]). A lateral — a lawyer who moves from one firm to another — must additionally have actually acquired confidential information to be disqualified under Rule 1.9(b).
Why
A representation ends; what the lawyer learned during it does not. If a client had to weigh at the outset whether their own confidences might later be turned against them, they would hold back the very facts the lawyer needed to do the work. The duty outlasts the file for that reason.
Plain English
Without the former client's informed consent confirmed in writing, don't take a matter that is the same as or substantially related to the former representation where the new client's interests are materially adverse. Substantially related means the same transaction or legal dispute, or a substantial risk that confidential factual information normally obtained would materially advance the new client's position — either prong alone.
A lateral is caught by Rule 1.9(b) only on actually acquiring material confidential information. Generally known information may be used adversely, but not revealed.
Rule
Rule 1.9 — Former-client conflicts
Rule 1.9(a). A lawyer who formerly represented a client shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the former client's interests, unless the former client gives informed consent, confirmed in writing.
"Substantially related" means:
Comment [3]: the matters involve the same transaction or legal dispute; OR
Comment [3]: there is a substantial risk that confidential factual information normally obtained in the prior representation would materially advance the new client's position
Objective test. Courts ask:
(1) What was the scope of the prior representation? (2) Could the lawyer have acquired information relevant to the current matter? (3) Would that information be useful in the current litigation? The former client need not reveal the confidential information to establish the risk; where a lateral's knowledge is disputed, the burden rests on the firm resisting disqualification (Comment [6]).
Rule 1.9(b) — Former firm's clients. A lateral lawyer is also disqualified when:
(i) the matter is the same or substantially related; (ii) the new client's interests are materially adverse to the former firm's client; AND (iii) the lawyer actually acquired confidential information material to the matter while at the former firm. Absence of actual acquisition defeats disqualification under Rule 1.9(b).
Rule 1.9(c). A lawyer who formerly represented a client (or whose present or former firm did) shall not use information relating to the representation to the disadvantage of the former client, or reveal such information.
Use exception — Rule 1.9(c)(1) only. A lawyer may use generally known information adversely to a former client. It does not permit revealing it, and information is not generally known merely because it is publicly available. Comment [3] — Substantial relationship. Information already disclosed to the public or to adverse parties ordinarily will not be disqualifying.
Example 1
Ex. 1
Ivan represented a pharmaceutical company on compliance for a cholesterol drug for two years, absorbing internal vulnerabilities. He then joined a plaintiffs' firm retained by a patient harmed by that drug. Rule 1.9(a) reaches him as the lawyer who personally acted for the drug company, and Rule 1.9(b) reaches him as a lawyer from the former firm: he actually acquired material confidential information; the matters are substantially related; interests are materially adverse. Without timely screening, the conflict imputes to his new firm. Take the three requirements one at a time against Ivan's two years; none of them asks when that work ended.
Example 2
Ex. 2
Jay advised a technology company on employment matters, gaining confidential knowledge of its pay practices. His new firm was asked to represent a former employee suing that company for pay discrimination. The transaction prong doesn't apply, but the pay-practice information Jay acquired would materially advance the plaintiff's case; the second prong of "substantially related" independently suffices to disqualify him. Give the transaction prong its best run at Jay's facts and it still fails; the second prong disqualifies him.
Either prong of "substantially related" alone is sufficient. The exam will suggest both triggers must be present.
Actual acquisition, not team assignment, triggers Rule 1.9(b). "Not assigned to the matter" is a red herring.
Tip
Questions · 2
Q 01ch08-e07
Question 1 of 2 · Rule 1.9(b)
Attorney spent four years as an associate at Firm, which defended Company in a long-running products case. Attorney was never assigned to that case and never billed an hour to it. Attorney did hold standing access to the shared drive that held the case files, worked daily beside the paralegal who ran its document review, and sat in on the weekly meetings where the defense strategy for that case was worked through by name. Attorney has now joined the firm representing the injured plaintiffs in the same case and argues that the absence of a formal assignment settles the question. Is Attorney subject to disqualification?
Keys 1 to 4 choose.