Elements of the Bar

Rule 1.9(b) bars a representation only when four conditions coincide, and the text of the rule names each one. A lawyer may 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 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.¹ The two numbered clauses are joined by “and,” and both attach to a matter in which the former firm acted for a client. A matter that fails any single condition falls outside the bar, however uncomfortable the move may feel to the lawyer or to the client left behind at the old firm.

Four questions organize a migrating-lawyer problem, and they arise in this order. Whose client was the adverse person, the old firm's or the lawyer's own? How does the old matter relate to the new one? Does the new client stand against the old firm's client? And what did the lawyer herself learn? The first three questions sort out clients and matters. The fourth examines the lawyer, and it supplies what paragraph (b) requires in place of personal representation: a lawyer who never represented the old firm's client needs some other tie to it, and what she learned provides that tie.

Two features of the text sit outside the four elements. The rule speaks of a lawyer who “knowingly” undertakes the representation, and it yields to the former client's informed consent, confirmed in writing. Consent lifts a bar that the elements have already established, so a later section takes it up after the elements.

A Former Firm's Client

The first element asks whose client the adverse person was. Rule 1.9(b) reaches a matter in which “a firm with which the lawyer formerly was associated had previously represented a client” whose interests are materially adverse to the person the lawyer would now represent.² The firm is the subject of that clause, and the rule never asks whether the lawyer served the client. A person the lawyer never met or advised can satisfy this element, so long as the old firm acted for him.

That wording separates paragraph (b) from paragraph (a). Paragraph (a) applies where the individual lawyer personally represented the person who is now the adversary, and paragraph (b) applies where the firm with which the lawyer was formerly associated represented that person.³ A lawyer who drafted a client's loan documents and later opposes that client in a dispute over them stands under paragraph (a), because her own work supplies the link. A lawyer who never touched the client's file stands, if anywhere, under paragraph (b), where no personal link exists and the question becomes what she learned.

Paragraph (b) exists because a lawyer can acquire a firm client's confidences without working on its matter. The comment recognizes that possibility when it asks, beyond personal participation in the representation, whether the lawyer did “otherwise obtain confidential information material to the matter.”⁴ Yet the rule does not bar every lawyer who leaves a firm that represented the client. While lawyers practice together, Rule 1.10(a) treats one lawyer's knowledge as accessible to every other lawyer in the firm, but a departing lawyer “sheds the ‘taint’ of imputed disability at the old firm's door” and takes along only the knowledge she actually possessed.⁵ Identifying the old firm's client therefore opens the analysis and does not end it.

Owen satisfies only the first element. The developer was a client of his former firm, which makes paragraph (b) the governing rule, but the bar reaches him only if the remaining elements are met, chiefly that he actually acquired protected information material to the matter. For a lawyer who acquired none, the answer is that neither the lawyer individually nor the new firm is disqualified, even though the interests of the two clients conflict.⁶ The common error is to stop at the observation that the old firm represented the adversary and announce a conflict. That observation satisfies one element, and the information element, taken up below, separates Owen from a lawyer who carries the client's confidences.

The clause also speaks of a firm that “had previously represented” the client, which describes a representation already completed.⁷ The attorney-client relationship generally ends when the agreed work is done, but an ongoing professional relationship can blur the endpoint, and the person may not become a former client until a clean break or until the relationship peters out. Whether that has happened is a question of fact, and the terms of the engagement agreement are the place to start.⁸

The second element ties the new engagement to the old firm's work. The rule asks whether the lawyer would represent the adverse person in “the same or a substantially related matter” in which the former firm had represented the client.¹¹ The phrase works as a filter: a lawyer does not become suspect merely because her new client opposes someone the old firm once served in some other matter. The comment to Rule 1.9 supplies the definition. Matters are substantially related if they involve the same transaction or legal dispute, or if there otherwise is a substantial risk that confidential factual information of the kind normally obtained in the prior representation would materially advance the new client's position in the later matter.¹²

The test is objective. The court looks at the prior matter and asks what information and facts ought to have been or would typically be disclosed in such a relationship, then asks whether information of that kind would be relevant to the present representation of the adverse client.¹³ Hazard, Hodes, and Jarvis put the modern test this way: it is “in large measure a judgment as to whether the former client's confidences are at risk of being turned against him.”¹⁴ The comparison runs between two matters and the files each would produce, so it precedes the separate question of what the migrating lawyer personally absorbed, which is the subject of the information element below.

Two examples from the comment show the test sorting matters that involve one client and one project. A lawyer who represented a client in securing environmental permits to build a shopping center is precluded from representing neighbors who oppose rezoning of the property on environmental grounds. The same lawyer is not precluded, on the grounds of substantial relationship, from defending a tenant of the completed center in resisting eviction for nonpayment of rent.¹⁵ The rezoning fight draws on environmental information of the kind permit work typically involves, while the eviction turns on whether rent was paid. The developer, the property, and the lawyer stay constant. What changes is whether the information the earlier work produced can serve the later client.

The comment's second example reaches further from matters that look alike. A lawyer who represented a businessperson and learned extensive private financial information may not later represent that person's spouse in a divorce, although the divorce shares no transaction with the business work.¹⁶ Suppose the lawyer learned in the first engagement of a Cayman Islands entity that the spouse knows nothing about. The spouse may be entitled to discovery on offshore accounts, but what the lawyer learned remains confidential factual information from the previous representation, and for that reason the divorce is substantially related to the earlier work.¹⁷ The unreliable shortcut is to compare labels, business advice and divorce, and call the matters unrelated. The useful comparison sets what the earlier work produced against what the later matter needs.

A former client that objects to a lawyer's move does not have to prove the link by disclosing what it told its lawyers. Requiring that showing would undermine the very confidentiality the rule protects, so a court may conclude that the lawyer holds usable information from the nature of the services provided and from what a lawyer providing such services would ordinarily learn.¹⁸

In Bevan v. Fix, the court described the same logic as a “factual context” approach. The focus of the inquiry is not whether confidential information was disclosed but whether the matters are related in some substantial way, and if the two matters have common facts, the attorney is in a position to receive confidential information that could be used to the former client's detriment in the later proceeding.¹⁹ It does not help the new client that the former client's adversary might discover the same information, because the duty to protect confidential information extends well beyond privileged communications.²⁰

When the earlier matter was litigation, the inquiry shortens. The Restatement comment says it “will be conclusively presumed that the lawyer obtained confidential information about the issues involved in the litigation.”²¹ Proof of what the client actually said would make it disclose the very confidences at stake. The presumption speaks to the issues in the case. It fixes what a lawyer who handled the case is taken to know, and it does not settle what a lawyer who merely belonged to the old firm learned, a question the section on presumed knowledge takes up.

Two refinements keep the test from reaching too far. Information that has become generally known does not create the link, and the Restatement states its substantial-risk formulation with that exception.²² Florida's version of the comment explains the idea: information widely disseminated by the media, or information that any reasonably prudent lawyer who had never represented the former client would obtain, is generally known and ordinarily not disqualifying, and the essential question is whether, but for the earlier representation, the lawyer would know or discover it.²³ Information may also be rendered obsolete by the passage of time, and for an organizational client general knowledge of its policies and practices ordinarily will not preclude a later representation, while knowledge of specific facts relevant to the new matter ordinarily will.²⁴ The same comment adds that a lawyer who recurrently handled a type of problem for a former client may later represent another client in a wholly distinct problem of that type, even adversely to the former client, whereas direct involvement in a specific transaction clearly bars later representation of clients with materially adverse interests.²⁵

Some authorities add a second route to a substantial relationship that does not depend on confidences. The Restatement adds a prohibition on a lawyer attacking work performed for the former client,²⁶ and Florida's version of the comment treats matters as substantially related when the current matter would involve the lawyer attacking work the lawyer performed for the former client.²⁷ For a case in that vein, see Brennan's, Inc. v. Brennan's Restaurants, Inc. For a migrating lawyer this route seldom decides the question, because paragraph (b) as written conditions the bar on protected information material to the matter, and most substantial-relationship disputes are fought over confidentiality.²⁸ Because the wording of the comment varies by jurisdiction, the version adopted where the problem arises controls the definition.

Materially Adverse Interests

The third element sits in a clause that is easy to read past. The old firm's client must be one “whose interests are materially adverse to that person,” meaning the person the lawyer would now represent.³¹ Adversity is a requirement in its own right. The substantial-relationship element compares two matters, while the adversity element compares two clients and asks whether, in the matter at issue, the new client's position runs against the old firm's client.

A lawyer can satisfy the first element and fail the second. In National Medical Enterprises, Inc. v. Godbey, the district court found a pending lawsuit substantially related to matters in which Baker & Botts had represented Cronen, yet not adverse to Cronen, and it concluded that the firm's representation of the plaintiffs would not in reasonable probability result in a misuse of Cronen's confidences.³²

The reason lies in what the bar protects against. Confidences can be turned against a client only by someone on the other side, so a new client whose goals run with the old firm's client gets nothing from the lawyer's knowledge that could hurt that client. A bar in that setting would limit the new client's choice of counsel and protect no one.

Adversity is measured in the matter on which the old firm represented its client. The lawyer should ask whether the new client's position in that matter is materially adverse to the old firm's client, and opposition elsewhere does not answer the question.³³ In Nemours Foundation v. Gilbane, Aetna, Federal Insurance Co., the court, applying a former-client rule, looked to Rule 1.7, which Rule 1.9 references, for guidance on when two clients' interests are adverse.³⁴ The concurrent-conflict analysis also depends on the setting: courts are generally more tolerant of simultaneous representation in a small, closely held corporation than in a large, publicly held one.³⁵

Hypothetical Illustration

Maya, an associate at Firm A, defended a business owner in slip-and-fall suits, while other Firm A lawyers represented the owner in negotiating to buy a laundry business. Maya joins Firm B, which represents the seller of the laundry business in those negotiations. Seller and buyer sit on opposite sides of price and terms, so the seller's interests are materially adverse to the old firm's client. Whether Maya is barred depends on the remaining elements, chiefly what she learned.

Sam leaves Firm C, which represented a homeowner in a settled suit against a roofing manufacturer, and joins Firm D, which represents a different homeowner now suing the same manufacturer over the same shingle defect. The suits are substantially related, and Sam absorbed the first homeowner's settlement limits at Firm C. Firm D's client wants what the first homeowner wanted. The only party opposed to Firm D's client is the manufacturer, who was never Firm C's client.

The seller in the first hypothetical stands against the old firm's client on price and terms, which is the plainest form of adversity. The secondary literature poses just such a problem: a lawyer joins a firm that represents the seller of a laundry business in contentious negotiations with a client of the lawyer's old firm, and that client demands that the new firm stop acting for the seller.³⁶ In the second hypothetical the homeowners stand together against the manufacturer, so the element fails even though the suits are related and Sam holds the first homeowner's settlement limits. That result lasts only while the two positions stay aligned: if the homeowners began to contest how a limited recovery should be divided, Firm D's client would oppose Firm C's former client in the matter, and the element would be met. The common error runs the other way. A student finds a conflict because the matters are related and the lawyer holds confidences, without asking whether the new client's position opposes the old firm's client.

Protected Material Information

The last clause of Rule 1.9(b) makes it a rule about what a lawyer knows. The bar applies only where the old firm's client is one “about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.”³⁹ The other elements describe clients and matters, which a student can check from the outside. This one asks what the migrating lawyer actually knows, and it has three working parts: the lawyer must have acquired the information, the information must be protected, and it must be material to the new matter. The structure follows from the lawyer's position. A lawyer who never represented the old firm's client has no relationship with it, so what justifies keeping her out is her possession of the client's secrets. Where she holds none, a bar would burden her and the new client and protect no one.

Rule 1.6(a) defines what counts as protected: all “information relating to the representation of a client.”⁴⁰ That covers far more than attorney-client privileged communications or work product. It includes information learned from sources other than the client, observations and facts that are not “communications” for purposes of the privilege, and documents prepared in the ordinary course of business and so not protected as work product.⁴¹ The label attaches irrespective of the source of the information, of whether the client asked the lawyer to keep it private, and of whether disclosure would harm the client.⁴² A student who equates “protected” with “privileged” will therefore overlook lawyers who hold a great deal of protected information that no court would call privileged.

The cross-reference to Rule 1.9(c) carries that protection past the end of the relationship. The duty to protect confidential information is perpetual, and Rule 1.9(c)(1) generally prohibits disclosing or using it to the disadvantage of a former client.⁴³ Rule 1.6 thus defines what counts, and Rule 1.9(c) keeps it protected once the person becomes a former client. The text of Rule 1.9(c) is taught in its own right elsewhere. Here it matters for the limit it supplies.

Rule 1.9(c)(1) allows a lawyer to use information, even to a former client's disadvantage, once “the information has become generally known.”⁴⁴ Florida's version of the comment to Rule 1.9 shows where that line falls: information widely disseminated by the media, or information any reasonably prudent lawyer would obtain without ever having represented the former client, is generally known and ordinarily will not be disqualifying, and the essential question is whether, but for the earlier representation, the lawyer would know or discover it.⁴⁵ A lawyer who left the old firm with only such facts holds nothing the bar was built to contain. The limit has an edge. Using a generally known fact differs from revealing it, and even when information about a former client appears widely disseminated, the lawyer generally should not become a source of its further distribution.⁴⁶

Materiality adds a final filter, because information can be protected and still beside the point of the new matter. Florida's comment illustrates the measure: knowledge of specific facts gained in the earlier work that are relevant to the new matter ordinarily precludes the later representation, while general knowledge of an organizational client's policies and practices ordinarily does not, and details that time has made obsolete may lose their value.⁴⁷ The substantial-relationship element asked what a lawyer doing this kind of work would typically learn from this kind of client. The information element asks whether this lawyer in fact learned something of that kind and whether it could help the new client in the new matter. It is the point where the comparison of matters meets the lawyer's own history.

Hypothetical Illustration

Tomas, an associate in Firm A's tax group, attends firm-wide strategy sessions where partners review the firm's major matters. In the sessions he attends, the partners go over a client's outstanding bank debts and the lowest figure at which that client would settle a dispute with a supplier. Tomas later joins Firm B, which represents the supplier in negotiations over that dispute. He never represented the client himself, so paragraph (a) does not apply to him, but he holds protected information about the client, the information bears directly on the dispute, and it would be valuable to the supplier. Every part of the clause is met, and unless the client gives informed consent, confirmed in writing, he is barred.

Nina works in Firm C's real estate group, which has no part in a client's dispute with a supplier. She has never opened that client's file or heard the dispute discussed, and all she knows about the client is what its website and press releases say. Her new firm, Firm D, is adverse to that client in a matter related to Firm C's work. The old firm's client is adverse to Firm D's client, and the matters are related, yet Nina holds no protected information that is material, so the bar does not reach her.

Tomas and Nina meet the same first three elements, and they differ only in what each knows. Their practice groups are evidence of that content, not a test of it, and a lawyer from another group who sat in a firm-wide session would stand where Tomas stands. A later section takes up how the structure of the old firm bears on what a lawyer is taken to know.

The element also separates what the lawyer actually acquired from what was only presumed while she was inside the old firm. Within a firm, Rule 1.10(a) treats each lawyer's knowledge as shared with all the others, which gives every lawyer notional access to every client's confidences. A departing lawyer sheds that imputed knowledge and takes only what she actually possessed.⁴⁸ The old firm's possession of a client's secrets therefore cannot satisfy this element by itself, and a lawyer who took no part in the client's matter and acquired no confidential information otherwise has not changed sides.⁴⁹ A California court reading rule 3-310(E) and Business and Professions Code section 6068 took a similar view, observing that both presuppose that attorney-client confidences are acquired by individual attorneys, not by law firms in general.⁵⁰ How a tribunal decides whether a given lawyer in fact acquired protected information, including who carries the burden, comes in a later section. This element requires the fact itself.