as to what the proper standard for attorney disqualification is in the case of conflict of interest that someone said somewhat differently when is it appropriate for an attorney to sue a former client for the past three plus decades this was a matter of well settled law in this circuit why isn't  governed by rule one point nine of the indiana rules of professional conduct in light of the southern districts rule i believe it's a three to five until the ruling in this case leith last rule one point nine which was adopted in one nine hundred eighty seven has not been found by any court to have changed the relevant case law really i mean you don't think there was an intent with  q tech commission to change these rules one on on conflicts not with respect to substantial relationship rule one point nine uses that term substantial relationship in this court case law is instructive in terms of operation transfer news is if you can't you can't after twenty some years represent somebody else well after twenty some years the situation may be different than it is now but there's no indication in the record that anything has changed  financial obligation i don't follow his it's not the same case in the sense of the person he's representing oh you know what the that's not what the rule said even the portion defended trans union on for four years for two hundred hours two hundred fifty cases collection of money violation of the fair credit reporting act  credit reporting act has two essential elements the first a sixteen eighty one e p which says that the reporting agencies like trained union have to maintain reasonable procedures to ensure maximum possible accuracy the other provision is sixteen eighteen when i that says that when a dispute is received from the consumer the c r a has to perform a reasonable re investigation there are broad principles at issue here that have not changed at all the statute hasn't been amended for one thing so are there the the procedures used to investigate and to prevent errors don't the those have to be disclosed to the point of sue sue and if c r a well the the broader matters but we're talking about things here given the intimacy of the relationship where you have for example opinions of the employees as to whether or not the and made finding use and we've got this advice in the comment to rule one point nine information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying  is going to be a lot of that and 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 were nearly will not preclude a subsequent representation and it goes on from there but i mean this record was paying pretty close attention to those exact issues where they go wrong in your view i think he went wrong in applying the wrong standard i think the standard that applies  area of two thousand and five since then numerous courts have ruled on this question and they all found this court case law and westinghouse analytical and the saddle to be totally consistent with one point not i think that comment is another way the drafters were trying to change your garden's to practitioners as to what a substantial relationship is i don't think it was meant to create a new  there's a body of indiana case law interpreting and applying rule one point nine and it was inexplicable to me why the parties didn't refer to that case law since  the indiana local rules and federal courts and cooperate the state code of conduct and presumably its body of case law in state court interpret in particular there's no court decisions from the intermediate court of appeals that work in your favor in terms of how this one point nine legal standard is applied and the relationship at that firm and just that the identity of the the geisha is clearly a brand new suit for medical malpractise not factually interrelated to the others but the fact that his prior lawyer who defended him and six other medical malpractise suits was now working for the plaintiffs malpractise firm was enough because the nature of the representation was sufficiently the same to make it related under the rule and thereby giving rise to the presumption of a risk that confidential factual information would normally have found its hands its way into that the hands of that lawyer issued in which that same framework for analysis was accepted and so that that wasn't argued that anything in under one point nine in the state cases i would say that they both still apply very rarely been read together by every district court that has decided this issue for the district court only hears district courts often write opinions and such a way is so not to find tension between what they're doing and what prior seventh circuit cases have done even if there is such tension in the universe good reason for such tension because of exactly th because the changes in the rules so you think we've got two independent sources of law here rule one point nine in the spotty of federal common law right  correct in the letterman decision judge parker referred to as dual sources which is how i view it is that would you agree that in the state courts they would apply rule one point nine yes y so we kind of have it's not exactly an eerie railroad problem but it's kind of it it's at least related here because we would look prefer to avoid situations in which the results are substantively different between state and federal courts so why shouldn't we try to basically reconcile what we're doing with rule one point nine in the indiana courts are i think you can i think you can reconcile one point nine with this court's body of case law i'm guessing there's two different standards that's what judge lawrence said below he said there were two different standards i'm saying that there is only one standard  work control so we argued we argued those honor i'm john cento i represent richard watkins in this appeal deal which as you know also is very much about me i wanted to start i think  on the standard of review which i was surprised we ended up disagreeing about but as i laid out in my brief i think the standard has to be of use or abuse of discretion the only  question and we're here essentially on an appeal to decide what legal standard governs your honor i would agree with that except the trans union has also asked that you render a positive opinion in their favor if they had just stuck to the legal issue that they asked for the right this is a legal inquiry that predominantly there is no requirement that the party invoking the conflict of interest actually reveal the confidential information as a factual matter in the course of litigating a disqualification motion that's a specific  premise of the rule itself that there doesn't have to be any kind of a factual airing of the confidential information that the former client is trying to protect in order to determine whether there's a conflict of interest so it's a bit skirmishes in the district court in this case about discovery and making a factual record and making factual findings were sort of beside the point this is really this is a legal inquiry once once the fact of the prior representation is established in the scope of the prior representation is established and the scope of the current representation is known because that's the case before the court and that's as far as the  it's it's all a legal question about whether there's a conflict your honor i respectfully disagree the legal wranglings over discovery all had to do with determining the scope not just about not about what information was there  seems to me there was no dispute about the scope of your prior representation of trans union you were its outcome outside counsel for a lengthy period of years and handled hundreds of cases for them in this area of the law worked out or sorted out or found by the district court then it's a strict application of the code of conduct i respectfully disagree i think they will just accept that for the time being and tell me as a legal matter why  right sure i'm right because the court finally in this case realized what standard needed to be applied now i argued opinion and relied on childers but it was pointed out back then so the reason i went is because if you apply rule rule one point nine to have to win even childress if you go all the way back to childers which at that point was all i was only so let's listen one point nine sure i'm and you say you have to win under one point nine i think that's highly debatable based on the commentary and in the one point nine and based on the indiana case law interpret ing and applying at and in particular the x y and c d o vs psychs case which evidently both sides are unaware of that's the medical malpractise case that i just referred to if that if the pri representation was enough to disqualify the lawyer in that case it's clearly enough to disqualify you in this case i don't know sixty prior malpractise cases and entirely new representation a lawyer migrates to a different firm an entirely new factually distinct medical malpractise case and still the court finds that it's substantially related for purposes of the rule because there is a substantial risk the confidential factual information as would normally have been obtained objective test not factual specifics that's been obtained in the prior representation that would advance the client's position in the subsequent matter your honor i don't know about that case ok but i just accept that that's what the court holds so how is your case different well i keep trying to explain my case it's different because you have to understand what's involved in workers and then trained unit what's involved in these cases you have to understand that in defending and if so you're a case the entire case is about the trans unions procedures everything about is about the procedures when you defend trans union and you get discovery from a plaintive that says why is this error on my credit file why is it there you have to answer that question how did it get there what procedure resulted in it being there all of that is discovering every ounce of it and so and the fact that you come into the representation on behalf of the plaintiffs knowing all that information and additionally knowing the principals who are involved  implementing the statutory duties imposed on trans union suggest that you are disqualified from suing them i don't know perhaps for life your honor if respectfully i don't know any of that information if you ask me right now how did mr it doesn't matter subjective y it's an object of test under the rule your i think could reasonably be expected that you would have come and information during the course of that many years of representation of trans union identical types of claims more than two hundred of them that you would have come in the course of that time into possession of confidential information that would assist you and representing your current client in suing your former class and you're out your honor and you're potentially out for life and there was that there was o question in the x y z versus deo case is wow and the court said a passage of nine or ten years was not enough to make the prior representation obsolete your honor i respectfully disagree and i and i say that the only way you can come to a conclusion is if you don't understand how that representation works and what the scope of my representation was that you that and the only way to come that conclusions by not accepting that there is a difference when i'm out practice case and defending and but if i ask them the question they will have to tell me if i say what procedure of yours resulted in an accuracy on his file they have to tell me they would have to tell anymore that i asked that question and there is no other question asked what procedure did you apply to his particular file and the other thing is twelve years have passed and as far as obsolescence go i don't know about the medical malpractise case but i can tell you this there is no way that after fifteen hundred cases they've litigated they have not learned something more about how to defend these cases it's not possible it also if you look at the evidence and what they claim as all of this competence or information that was supposedly p an issue they raised and you look at their evidence of it it isn't their read mr sharp it's testimony about what supposedly their strategies are what's mr surface description of the strategy read the complaint none of that substantial relationship has been found this is all in the description of what makes a new matter substantially related to an old matter it's all part of the methodology of how the rule is applied and how the theory would you have been able to leave mr shirkers firm and a month later sue trans union i thought so at the originally that was my first when i first left i mean you have to understand i represent i was in this line representing train june and then and then subsequently equifax for years it was the earliest part of my practice is what i learned how to do i learned how the f c already works i learned that long and so i definitely wanted to but i wasn't sure so that's why the very first and this is in the record to the very first thing that i did was i went to the indiana indiana has a an ethics committee and you can ask them ethical questions and so i asked the question after about two years of being now and they weren't sure so i waited even longer and i waited as as long i thought was reasonable for me to wait i've never violated an ethical rule in my life i've never i've been accused of it once and was found and didn't have to respond to that person's life i've never violated ethical rule i have no intentions and still have no intention of violating this one but the idea there after twelve years i have some kind of knowledge about anything that helps me in any way shape or form to do to litigate a case against them is preposterous it's just not true and that's how you're holding yourself out public that's the truth you i'll give you a couple two minutes and i just have two quick points the first is as a practical matter since judges are lawyers before taking the bench we all kno that in defending a client you find out a myriad of things that are not public knowledge but if you talk to employees in this case mr chad too has defended the deposition of at least two current trans union much of a morning greeter i think the practice of law would be a lot different and as we all know from being on the other side of the table when we depose a witness and we're looking for information we don't get everything that there is we do the best that we can so this notion that somehow you can represent a client for four years in two hundred fifty cases and not learn anything that isn't public knowledge is contrary to our shared experience and i have no fear of contradiction that client against that client on behalf of another one but this prohibition has not seemed enough by itself to make clients feel secure about reposing confidences in lawyers so a further prohibition has evolved may not represent an adversary of his former client if the subject matter of the two representations is substantially related which means if the lawyer could obtain confidential information in the first representation that would have been relevant in the second it is  relevant whether you actually obtain such your permission and used it against his former client and to your point earlier judge hamilton are you submit that that has not changed and still the expectation of the public when they hire  lawyers that more will not turn around ten years twenty years later and sue them there may be circumstances especially burden representing individuals where something being rendered obsolete could occur but