[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. 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. 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.
[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 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. With regard to
disqualification of a firm with which a lawyer is or was
formerly associated, see Rule 1.10.