Concept
Consent Confirmed in Writing
Rule 1.9(b): Conflicts a lawyer brings from a former firm
Consent Confirmed in Writing
Rule 1.9(b) closes with an exit: the lawyer may take the matter if “the former client gives informed consent, confirmed in writing.”1 The exit opens only after every element of the bar is present, since consent lifts a bar that already exists. It makes three demands. The right person must consent, that person must be informed, and the consent must be confirmed in writing. All three come from a single purpose. The bar keeps an old firm’s client from having its confidences turned against it, so whoever holds that interest holds the power to release it, and the added conditions ensure that the release is knowing and leaves a record.
Who Must Consent
The consent that counts belongs to the former client, the client of the old firm whose interests are materially adverse to the person the lawyer would now represent.2 Successive-representation conflicts are waivable, and the party who must give informed consent to the new representation is the former client.3 The reason appears when you ask who holds the interest at stake. Paragraph (b) prevents a lawyer from carrying one client’s secrets across to the other side, so those secrets, and the right to decide whether to risk them, belong to that client. The new client stands to gain from the lawyer’s knowledge, which makes its approval the one approval that proves nothing. If it could lift the bar, the beneficiary of the risk would waive that risk on behalf of the person who bears it.
The same logic disposes of a lawyer’s own assurance that she will keep the old firm’s secrets to herself. The former client cannot check that private resolve, and the rule hands the decision to the client instead of asking it to trust a promise.
An exam stem that recites enthusiastic approval from the new client, or from the new firm’s managing partner, has described consent from the wrong person. The question to ask is whether the client whose confidences the lawyer carries has agreed.
What Informed Means
The Rules define informed consent, and the definition governs here: the client must receive “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”5 The definition has two parts, and each does its own work. Information about the risks tells the former client what it stands to lose if the lawyer joins the other side. Information about alternatives tells it that the choice is open: it may refuse, and refusing keeps the lawyer off the matter.
Consent is a decision to give something up, and a decision made without knowing what is being surrendered is not a real one. The amount of explanation therefore scales with the stakes. When disclosure appears innocuous and the client already understands the information and the effect of revealing it, little explanation may be required. When the information is of greater value, or the consequences of its release are likely to be more significant, the lawyer’s explanation appropriately will be more extensive.6 Paragraph (b) applies only when the lawyer holds protected information that is material to the new matter, so the stakes there are seldom trivial, and a thin explanation is a risky one.
A countersigned form is evidence that someone agreed. The exam question is what the former client was told before agreeing. A signature on a notice that omits the risks and the option to refuse leaves the bar in place.
Confirmed in Writing
Rule 1.0(b) defines “confirmed in writing” as a writing by the person, or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.8 The second route lets the former client agree by phone or in a meeting while the lawyer completes the requirement with a follow-up letter. “Promptly” ties that letter to the conversation. If it is not feasible to obtain or transmit the writing when the client gives consent, the lawyer must obtain or transmit it within a reasonable time afterward.9 That allowance comes from a comment to Rule 1.7, but the term it explains is defined in Rule 1.0(b), so the same reasoning fits paragraph (b).
The writing validates the informed consent; it does not stand in for it.10 Its purpose is to “impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.”11 The order of events follows from that purpose. The informed consent comes first, and the writing confirms what already exists. A form signed without real information records no real decision, and an informed agreement with no writing leaves the very ambiguity the writing is meant to prevent.
The requirement also asks for more than an older formulation did. An earlier version of the former-client rule, quoted in a judicial opinion, lifted its bar when “the former client consents after consultation,” and the quoted text contains no writing requirement.12 The current Model Rule adds the writing: the consent must be informed and confirmed in writing.
The usual exam error is to treat the writing as the whole requirement, or to treat an oral agreement as enough. Both halves are needed: informed consent first, and then a writing from the client or a promptly transmitted confirmation of that consent.