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 confidences or secrets of a former client 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 confidences or secrets of a former client except as these Rules would permit or require with respect to a client.

(d) 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.


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. 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] In accordance with prior Maine law, 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.


REPORTER’S NOTES:

Model Rule 1.9 (2002) addresses the issue of conflicts of interest between current clients and former clients. It corresponds in substance to M. Bar R. 3.4(d) and M. Bar R. 3.4(b)(1). For the reasons set forth below, the Task Force recommended the adoption, with some minor modifications, of the structure and substance of Model Rule 1.9 (2002).

The Maine Bar Rules defining conflicts of interest generally is found in M. Bar R. 3.4(b)(i). This definition applies to conflicts with respect to current clients, former clients, third parties and conflicts between a lawyer’s own interests and those of the client. M. Bar R. 3.4(d) addresses conflicts of interest between the representation of a current client and a former client. The Model Rules (2002) present a different organization for the conflict-of-interest rules, allowing each type of conflict its own rule. The conflict-of-interest rules outlining the rules governing conflicts between current clients and former clients are found in Model Rule 1.9 (2002).

The underlying message of Model Rule 1.9 (2002) is that a lawyer’s duty to preserve a client’s confidences and secrets continues beyond the end of the attorney-client relationship. Thus, as to confidential information about a former client, a lawyer has a duty which continues in perpetuity unless otherwise required by Maine Rule of Professional Conduct 1.6 or 3.3; in subsequent representation of another client, a lawyer cannot use that confidential information to the disadvantage of the former client.

Both Model Rule 1.9 (2002) and the existing Maine Bar Rules preclude representation of a client that is adverse to a former client in the same or substantially related matter, but they approach differently the issue of potential use of confidential information which is not substantially related. M. Bar R. 3.4(d)(1) states that the representation is prohibited if representation adverse to a former client may involve the use of confidential information obtained through such former representation. Model Rule 1.9 Comment [3] (2002) addresses the same point in its definition of when matters are “substantially related”: “if they involve the same transaction or legal dispute, or if there is otherwise 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.” This is an objective test. Using information about, for example, a former client’s financial difficulties or a client’s ability to weather the stress of litigation, may very well materially advance the current client’s position in a subsequent adverse matter—even if the matters involve different transactions, facts or legal disputes. Representation without consent is prohibited in both situations. In order to make clear to the reader without the benefit of the Comments that the new Rule 1.9 continues to prohibit representation where there is a substantial risk that confidential factual information could materially advance the new client’s position, the Task Force moved the Comment 3 definition of “substantially related” to a new subsection (d) in the body of the rule itself.

In addition to prohibiting the use and disclosure of confidences and secrets of former clients, Rule 1.9(c) also embraces the idea that gaining confidential information in the course of representing Client X may trigger a conflict-of-interest in a later representation of Client Y in a matter adverse to former Client X. The presence of a conflict-of-interest in this situation turns on whether the matters are substantially related.

Moreover, Rule 1.9 and the corresponding Comments must be read in light of Rule 1.6 and Rule 1.9(c), prohibiting lawyers from revealing or using client confidences and secrets. As the text of and Comments to Rule 1.9, read together with Rule 1.6, make clear, loyalties to clients may fade as current clients become former clients, but confidences and secrets last forever. Thus, even if a matter that was the subject of a former representation was not substantially related to a subsequent representation, if the lawyer sought to use information about a former client’s reaction to the stress of litigation in the unrelated matter that was adverse to that client, this “use of information” would violate Rule 1.9(c)(1). Model Rule 1.9 (2002) is in accord with RESTATEMENT 132.

Model Rule 1.9(b) is substantially equivalent to M. Bar R. 3.4(d)(1)(ii), but there are some distinctions. The Maine Bar Rules makes clear that when Lawyer X moves from Firm A to Firm B, Lawyer X (or any other lawyer in Firm B) may not represent a client of Firm B whose interests are materially adverse to a client of Firm A, if the representation involves “the subject matter of the former representation on which the lawyer personally worked.” The Maine Bar Rules also includes an independent basis upon which to prohibit representation in such a situation: if the lawyer personally acquired confidential information that is material to the new matter. In contrast, the Model Rule (2002) requires that not only does the representation have to be in connection with the same, or a substantially related matter, the lawyer must also have personally acquired information protected under Rule 1.6 and 1.9(c) (confidences or secrets) that is material to the new matter. In the departing lawyer context, knowledge of confidences and secrets by some members of a firm is not per se imputed to the departing lawyer. This rule reflects the reality, particularly in large law firms, that a lawyer may not be aware that a certain client was represented by his or her former firm, much less gained confidential information about that client, and thus it makes little sense to impute such knowledge to both that lawyer and the lawyer’s new law firm. In smaller firms however, there may be much more firm-wide knowledge of client confidences and secrets. If the departing lawyer does have confidences and secrets of a client, however, as Comments [5], [6] and [7] and Rule 1.9(c) make clear, lawyers have a duty to keep the confidences and secrets of their former clients in perpetuity. This is consistent with the rule imputing conflicts of interest found in Rule 1.10(b).

Rule 1.9 is concerned with principles of loyalty, as well as confidentiality (See Comment [4]). It is also aspires to strike a balance between giving clients freedom to make choices with respect to their counsel, allowing lawyers to have a degree of career mobility, and in protecting the material interests of clients.

The Model Rule (2002) includes the qualification that such representation, to be prohibited, must be done “knowingly,” defined in Rule 1.0(f), as meaning “actual knowledge of the facts in question” (although a person’s knowledge may be inferred from circumstances). See Rule 1.0(f). According to Comment [5], a lawyer is disqualified from representation only when he or she has actual knowledge of information protected by Rules 1.9 and 1.9(c). This is not meant to relieve lawyers from the obligation of having rigorous conflict checking procedures in place, and implementing them upon the hiring of lawyers from other law firms.

M. Bar R. 3.4(d)(1)(iii) states the former-client-conflict-of-interest-rule from the perspective of the firm from which a lawyer has departed. It is a conflict-of-interest rule as well as an imputation rule. It makes clear that a law firm may not represent a party adverse to a former client of that a firm (i) in a matter that is substantially related to the subject matter of the former client’s representation or, (ii) if a lawyer remaining with the law firm has confidences or secrets that are material to the new matter, in the absence of informed written consent. This rule is designed to make the point (among others) that notwithstanding the fact that the matter is not formally concluded, the relationship between the client and the law firm is deemed to be formally terminated. Thus, the client is, at that point, a former client of the law firm. This conflict-of-interest rule is addressed in concept in Model Rule 1.9 (2002), and more directly in Rule 1.10. See Reporter’s Note to Maine Rule of Professional Conduct 1.10 for a more complete discussion of this issue.

A conflict-of-interest, as described in Model Rule 1.9(a) and (b) (2002) may be cured by a client’s informed consent. Pursuant to the M. Bar R. 3.4(d)(1)(ii), such consent must be in writing. The informed consent required to cure a Rule 1.9(a) or (b) (2002) conflict does not have to be written or signed by the client; merely confirmed in writing by the lawyer. The Task Force determined that informed consent, confirmed in writing by the lawyer provides clients with sufficient protection of their interests.

The Task Force discussed the distinction between the two primary remedies for a finding of a conflict-of-interest: discipline and disqualification. Finding a violation of Rule 1.9 is a threshold question to a motion to disqualify. Finding a violation of Rule 1.9 is a necessary predicate to a successful motion to disqualify. To disqualify a lawyer based upon a claim of a conflict-of-interest, a court must also decide whether disqualification of a lawyer is a proper sanction to remedy a violation of the Rules of Professional Conduct. Courts must balance the public’s interest in the integrity of the judicial process with a client’s interest in picking his or her own lawyer.