Former and Prospective Clients

Rule 1.8(b) governs a lawyer who still represents the person whose information is at stake: without informed consent, the lawyer may not use information relating to the representation to that client's disadvantage, except as the Rules permit or require.¹ Two other groups fall outside that text, the former client and the person who only consulted the lawyer, and the Rules extend protection to both. Rule 1.9(c) covers the former client, and Rule 1.18 covers the prospective client. In each setting the protection follows the information, and the settings differ mainly in what the lawyer may still do.

Former Clients

Rule 1.9(c) is the former-client counterpart of Rule 1.8(b). It forbids a lawyer to use information relating to the representation of a former client to that client's disadvantage unless the Rules permit the use or the information has become generally known, and it separately forbids revealing the information except as the Rules permit.² The duty does not depend on a conflict. It applies whether or not the later matter is related to the earlier one, and even when the lawyer represents no one in acting, because the protection of confidential information is part of the sacred trust of every lawyer.³

The end of an engagement releases a lawyer from some duties but not from this one. A former client is no longer owed reasonable care in pursuing her objectives, yet the lawyer must still protect her confidential information from disclosure (Rule 1.6(a)) and from adverse use (Rule 1.8(b)). She also should not have to worry that the lawyer will turn around and attack work done for her while representing someone new.⁴ Loyalty lasts less well. It persists only to the extent of forbidding a lawyer from undermining the very work done in the earlier representation, and fidelity to a former client becomes more attenuated as time passes. The former-client rule therefore aims chiefly at adverse use of the past client's confidential information for the benefit of a current client.⁵

Two sources show the ban at work. In the first, a lawyer represents a husband and wife in acquiring a business and then represents the husband in the couple's divorce. The business is an asset of the marital estate, so the lawyer must argue that the husband deserves a larger share of it. When the wife complains, the lawyer cannot show that she consented to the conflict, and it is shown that he used personal information to the detriment of his former client, the wife.⁶ In the second, a court approved a referee's conclusion that letters written by a lawyer named Dunagan violated rule 4-1.9(b), because he clearly used information relating to his representation of Paula Leucht to her disadvantage and rule 4-1.6 did not permit the disclosures.⁷ The court's reasoning followed the same steps as the current-client rule: information from the representation, its use, disadvantage to the person, and no exception that allowed it.

One feature separates the former-client rule from its current-client sibling. Rule 1.9(c) lets a lawyer use information about a former client once it has become generally known.⁸ The text of Rule 1.8(b) has no such clause and excuses adverse use only through the client's informed consent or as the Rules permit or require.⁹ A lawyer who still represents the client therefore cannot defend adverse use by pointing to a newspaper story. The safe harbor also reaches only use. Even when information about a former client has been widely disseminated, the lawyer generally should not be a source of its further distribution, and when the information is sensitive, the former client should not have to bear the embarrassment of having her own former lawyer confirm that the reports are accurate.¹⁰

The hinge in that scene is whether the fact had already reached the public. Students most often err by carrying the safe harbor back to a current client, where the text of Rule 1.8(b) gives no such clause.

Prospective Clients

A person who consulted a lawyer and left without hiring the lawyer is still owed something. Any discussion with a lawyer about the possibility of forming a client-lawyer relationship counts as a communication with a prospective client, and the lawyer has a duty not to reveal private information learned in those consultations whether or not a relationship follows.¹³ The protection is selective: the lawyer must guard some, but not all, communications with prospective clients, and a conversation enters the category by concerning the possibility of forming a relationship.¹⁴

Rule 1.18 adds a limit on later representations, using a test that parallels the former-client test but is slightly diluted. A lawyer may not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.¹⁵ The former-client test asks only whether the matter is the same or substantially related, so the prospective-client test adds a condition about harmful information.¹⁶

The employee spoke freely only because she was deciding whether to hire the lawyer, and the Rules treat that purpose as enough to protect what she said.