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Rule 4-1.9 Conflict of Interest; Former Client
A lawyer who has formerly represented a client in a matter shall not
thereafter:
(a) 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; or
(b) use information relating to the representation to the
disadvantage of the former client except as rule 4-1.6 would permit with respect
to a client or when the information has become generally known.
COMMENT
After termination of a client-lawyer relationship, a
lawyer may not represent another client except in conformity with this rule. The
principles in rule 4-1.7 determine whether the interests of the present and
former client are adverse. Thus, 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.
The scope of a "matter" for purposes of rule 4-1.9(a) may
depend 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 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 wholly 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 jurisdiction. 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.
Matters are "substantially related" for purposes of this rule
if they involve the same transaction or legal dispute, or if the current matter
would involve the lawyer attacking work that the lawyer performed for the former
client. For example, 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.
Lawyers owe confidentiality obligations to former clients,
and thus information acquired by the lawyer in the course of representing a
client may not subsequently be used by the lawyer to the disadvantage of the
client without the former client's consent. 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. 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. Information that has been widely
disseminated by the media to the public, or that typically would be obtained by
any reasonably prudent lawyer who had never represented the former client,
should be considered generally known and ordinarily will not be disqualifying.
The essential question is whether, but for having represented the former client,
the lawyer would know or discover the information.
Information acquired in a prior representation may have been
rendered obsolete by the passage of time. 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.
The provisions of this rule are for the protection of clients
and can be waived if the former client gives informed consent. See terminology.
With regard to an opposing party’s raising a question of
conflict of interest, see comment to rule 4-1.7. With regard to disqualification
of a firm with which a lawyer is associated, see rule 4-1.10.
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