Concept
Related Rules and Client Types
Rule 1.9(c): Duty not to use or reveal a former client's information
Related Rules and Client Types
Rule 1.9(c) binds a lawyer who has formerly represented a client in a matter, and a lawyer whose present or former firm has done so.1 It forbids two things: using information relating to the representation to the former client's disadvantage, and revealing it. Each prohibition yields to what the Rules would permit or require with respect to a client, and the use prohibition also yields when the information has become generally known.2
That standard does not stay inside the plain case of one lawyer and one finished engagement. Other rules borrow it for people who never became clients. It follows a lawyer from firm to firm. And it applies only once a client has genuinely become a former client, so a lawyer must settle a person's status before choosing the test. The three subsections below take those extensions in turn, starting with the person who only consulted a lawyer.
Prospective Clients
A person who consults a lawyer and never hires the lawyer has still handed over confidences. Under Rule 1.18, the lawyer's obligation to protect confidential information applies to information the prospective client shared, even if no attorney-client relationship forms.3 The Restatement explains why: prospective clients, like clients, often disclose confidential information to a lawyer, place documents or other property in the lawyer's custody, and rely on the lawyer's advice.4 A person who expected the lawyer to be free to use or repeat what was said would hold back.
The prospective-client duty borrows the former-client test instead of writing a new one. The Restatement, in the passage quoted in the cited opinion, bars a lawyer who has had discussions in consultation with a prospective client from using or revealing information acquired in the consultation, “even when no client-lawyer relationship ensues, except as RPC 1.9 would permit in respect of information of a former client.”5 Rule 1.9(c) therefore comes along into the consultation. The lawyer may not use the information to the person's disadvantage unless the Rules would permit or require the use with respect to a client or the information has become generally known, and may not reveal it unless the Rules would permit or require the disclosure with respect to a client.6 What the earlier sections said about use, revealing, and the borrowed exceptions applies to the prospective client in the same terms.
The borrowing stops at the former-client level, and consultations explain why. The Restatement says that, given the limitations inherent in consultations, “prospective clients should receive some but not all of the protection afforded clients.”7 The gap shows most clearly on public information. For a current client, Rule 1.6 attaches confidentiality to all information relating to the representation, whatever its source and whether or not it is generally known.8 For a former client, and so for a prospective client, the use prohibition lifts once the information is generally known.9 A person who hired the lawyer stays protected after a story reaches the newspapers, while a person who only consulted the lawyer loses the protection against use once the same facts are generally known. The carve-out appears only in the use prohibition, and the revealing prohibition has no generally known clause.10
Delgado never represented the consumer, and the protection attaches anyway. A lawyer cannot end the duty by declining the case. Taking a matter and using information are also separate questions, so any permission to accept the store's engagement would say nothing about what Delgado may do with the consumer's confidences inside it.
Disclosure alone does not make someone a prospective client.
Rule 1.18 excludes from the definition of prospective client a person who communicates with a lawyer for the purpose of disqualifying the lawyer.11 The exclusion follows from what the protection is for. It makes candid consultation safe for people seeking legal services, and a person who is not seeking them has no consultation to protect. If talking to a lawyer were enough, anyone could remove a lawyer from a matter by unloading information first. Purpose separates the consumer from Marsh, and the litigator owes Marsh nothing under the borrowed standard.
A consultation also produces a duty of loyalty, and that duty is weaker. Loyalty attaches to the prospective client, but the conflict constraints are more limited, because the relationship is confined to the discrete purpose of considering a representation that was never undertaken.12 Under the Restatement, a lawyer is barred from representing a client with materially adverse interests in the same or a substantially related matter only if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.13 Those conflict rules are taught elsewhere. This section concerns use and revealing, where the prospective client matches the former client.
Because the prospective client receives the former-client standard, the exceptions that would apply with respect to a client remain available, informed consent among them.14 A lawyer can also seek consent in advance, asking the prospective client to agree that receipt of information will not prevent the lawyer from representing another party in the matter.15
Clients of a Former Firm
Rule 1.9(c) reaches two classes of lawyer: one who has formerly represented a client in a matter, and one whose present or former firm has done so.17 Imputation explains the second class. Under Rule 1.10(a), when lawyers are associated in a firm, the knowledge of one is imputed to every other, so confidential information that one lawyer holds is regarded as accessible to all.18 Because the chapeau also covers a former firm, the duty can follow a lawyer to a new employer.
A lawyer who leaves a firm, however, “sheds the ‘taint’ of imputed disability at the old firm's door.” The lawyer takes along only the knowledge about clients that the lawyer actually possessed, not what imputation presumed.19 The question for a lateral therefore turns on a fact: what did this lawyer actually learn? If a lawyer acquired no knowledge or information relating to a particular client of the former firm, neither the lawyer nor the new firm is disqualified from representing another client in the same or a related matter, even though the interests of the two clients conflict.20 A lawyer who learned nothing has no confidence to turn against the former client, so disqualifying that lawyer for the old firm's work alone would penalize a job change without protecting anyone.
Paragraph (c) governs what happens when the lawyer did acquire information. It restricts use and revealing in whatever matter the lawyer is permitted to handle, and its text contains no substantial-relationship element. A lateral problem therefore needs two passes. First ask whether the lawyer may take the adverse engagement, which depends on what the lawyer actually knows. Then ask what the lawyer may do with that information once inside the engagement. The usual error is to stop after the first pass: an unrelated new matter clears the adverse-representation bar, and the student forgets that paragraph (c) is still waiting.
A lateral usually has to prove a negative. The starting point is a presumption that a moving lawyer acquired confidential information of all the former firm's clients. The presumption is rebuttable client by client, typically by an affidavit showing that the lawyer did no work for the client or on the matter and so could not have learned its confidences.21 The burden stays on the lawyer, who alone knows what was learned.22 Firm structure shapes the showing. Where lawyers have general access to all client files and regularly join discussions of client matters, the lawyer is presumed to know about those clients. In a firm divided by practice area or office, where a lawyer sees only a limited number of files and talks only with colleagues on those matters, it may be inferred that the lawyer knows the clients actually served and no others.23
A firm cannot run a conflicts check on a lateral hire without learning something about the lateral's former clients, and Rule 1.6(b)(7) accommodates that need. It permits a lawyer to reveal information relating to a representation to the extent the lawyer reasonably believes necessary to detect and resolve conflicts of interest arising from a change of employment, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.24 The permission is one of the borrowed exceptions to paragraph (c)(2), and its own limits keep it small. The lateral may tell the new firm enough to see whether a conflict exists, and may not recount the former client's private facts, which the check does not require.
Former Versus Current Clients
Paragraph (c) speaks of a lawyer who “has formerly represented a client in a matter,” so every analysis under it assumes that the person is a former client.28 That assumption is the first thing to test. Confidentiality never lapses when an engagement ends, because the duty to protect confidential information is perpetual.29 But the form of the duty depends on whether the relationship is alive, and two differences show why the label matters.
The first difference concerns public information. For a former client, subparagraph (c)(1) lifts the ban on adverse use once the information has become generally known, and the lawyer may then use it in representing a later client.30 For a client the lawyer still represents, Rule 1.6 attaches confidentiality to all information relating to the representation, whatever its source and whether or not it is generally known, and Rule 1.8(b) separately bars adverse use of confidential information.31 The gap tracks what each relationship still carries. A current engagement holds the lawyer's loyalty and the client's trust, so a lawyer who exploits even a published fact against that client betrays a relationship still in force. Once the engagement ends, the interest that remains is secrecy, and a fact that is no longer secret leaves little for the use ban to protect. A lawyer who wrongly treats a current client as a former one may conclude that a newspaper story frees the lawyer to use what the lawyer knows. That conclusion is mistaken.
The second difference concerns which engagements the lawyer may accept. A lawyer may not represent one present client against another present client, even when the two matters are unrelated. If the adverse party is a former client, the lawyer may go forward, provided the matters are not substantially related.32 Whether the adverse party is existing or former can therefore decide a conflict dispute, and a lawyer offered a lucrative engagement against a current client has an incentive to recast that client as a former one.33 The label governs both which engagements the lawyer may take and how much of the client's information stays protected, so the relationship's status is a threshold question and not a formality.
An engagement generally ends when the agreed-upon work is complete.34 An ongoing professional relationship is harder to date. It may end with a clean break, such as a letter saying the lawyer no longer represents the client, or it may peter out over time. Which happened is a factual question, and the terms of the initial engagement agreement are the place to start.35 Where reasonable confusion exists about whether the relationship continues, the responsibility to clarify rests on the lawyer, the professional dealing with a layperson.36
The temptation to relabel a client has a name. The hot-potato doctrine rests on loyalty and sharply limits a lawyer's ability to withdraw prematurely from a representation in order to take on the adversary of the now-former client.37 If a lawyer's own announcement could end the relationship at will, a client's protection would last only until a better-paying adversary appeared. A notice sent for the lawyer's convenience therefore does not move the client from the strict standard to the former-client standard. The full treatment of current-client conflicts lies elsewhere. Here the consequence matters: a person still treated as a current client cannot be handled under paragraph (c), and the generally known carve-out is unavailable.
The lawyer controls the other outcome at the front end. A lawyer who wants to preserve the option of accepting future clients should conclude each representation with a polite letter explaining that the relationship has ended. A lawyer who keeps up a connection with a client, even without doing any legal work, may find that the stricter concurrent-conflict rules block an adverse engagement.38 A narrowly defined engagement also makes completion, and so termination, easier to show.39
Two facts separate the scenes, and an exam stem will usually supply both. The warehouse engagement was a single discrete matter, while the manufacturer relied on the lawyer across many matters. The warehouse letter marked a real ending when the work was done, while the manufacturer's letter answered an adverse offer. A stem that recites a termination letter without saying when it was sent, or why, is inviting the question whether the ending was genuine.