Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › CLIENT-LAWYER RELATIONSHIP › Rule 1.9 - Duties to Former Clients

Current through Register Vol. 54, No. 28, July 13, 2024
(a) A lawyer
						who has formerly represented a client in a matter shall not thereafter
						represent another person in the same or a substantially related matter in which
						that person's interests are materially adverse to the interests of the former
						client unless the former client gives informed consent.
(b) A lawyer shall 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 had acquired information protected by Rules
						1.6 and
						1.9(c) that is
						material to the matter; unless the former client gives informed
						consent.
(c) A lawyer who has
						formerly represented a client in a matter or whose present or former firm has
						formerly represented a client in a matter shall not thereafter:
(1) use information relating to the
						representation to the disadvantage of the former client except as these Rules
						would permit or require with respect to a client, or when the information has
						become generally known; or
(2)
						reveal information relating to the representation except as these Rules would
						permit or require with respect to a client.
Comment:
(1) After termination of a client-lawyer
						relationship, a lawyer has certain continuing duties with respect to
						confidentiality and conflicts of interest and thus may not represent another
						client except in conformity with this Rule. Under this Rule, for example, a
						lawyer could not properly seek to rescind on behalf of a new client a contract
						drafted on behalf of the former client. So also a lawyer who has prosecuted an
						accused person could not properly represent the accused in a subsequent civil
						action against the government concerning the same transaction. Nor could a
						lawyer who has represented multiple clients in a matter represent one of the
						clients against the others in the same or a substantially related matter after
						a dispute arose among the clients in that matter, unless all affected clients
						give informed consent. See Comment (9). Current and former government lawyers
						must comply with this Rule to the extent required by Rule 1.11.
(2) The scope of a "matter" for purposes of
						this Rule depends on the facts of a particular situation or transaction. The
						lawyer's involvement in a matter can also be a question of degree. When a
						lawyer has been directly involved in a specific transaction, subsequent
						representation of other clients with materially adverse interests in that
						transaction clearly is prohibited. On the other hand, a lawyer who recurrently
						handled a type of problem for a former client is not precluded from later
						representing another client in a factually distinct problem of that type even
						though the subsequent representation involves a position adverse to the prior
						client. Similar considerations can apply to the reassignment of military
						lawyers between defense and prosecution functions within the same military
						jurisdictions. The underlying question is whether the lawyer was so involved in
						the matter that the subsequent representation can be justly regarded as a
						changing of sides in the matter in question.
(3) Matters are "substantially related" for
						purposes of this Rule if they involve the same transaction or legal dispute or
						if there otherwise is a substantial risk that confidential factual information
						as would normally have been obtained in the prior representation would
						materially advance the client's position in the subsequent matter. For example,
						a lawyer who has represented a businessperson and learned extensive private
						financial information about that person may not then represent that person's
						spouse in seeking a divorce. Similarly, a lawyer who has previously represented
						a client in securing environmental permits to build a shopping center would be
						precluded from representing neighbors seeking to oppose rezoning of the
						property on the basis of environmental considerations; however, the lawyer
						would not be precluded, on the grounds of substantial relationship, from
						defending a tenant of the completed shopping center in resisting eviction for
						nonpayment of rent. Information that has been disclosed to the public or to
						other parties adverse to the former client ordinarily will not be
						disqualifying. 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 ordinarily will not preclude a subsequent representation; on the
						other hand, knowledge of specific facts gained in a prior representation that
						are relevant to the matter in question ordinarily will preclude such a
						representation. A former client is not required to reveal the confidential
						information learned by the lawyer in order to establish a substantial risk that
						the lawyer has confidential information that could be used adversely to the
						former client's interests in the subsequent matter. A conclusion about the
						possession of such information may be based on the nature of the services the
						lawyer provided the former client and information that would in ordinary
						practice be learned by a lawyer providing such services.
Lawyers Moving Between Firms
(4) When lawyers have been associated with a
						firm but then end their association, the question of whether a lawyer should
						undertake representation is more complicated. There are several competing
						considerations. First, the client previously represented by the former firm
						must be reasonably assured that the principle of loyalty to the client is not
						compromised. Second, the Rule should not be so broadly cast as to preclude
						other persons from having reasonable choice of legal counsel. Third, the Rule
						should not unreasonably hamper lawyers from forming new associations and taking
						on new clients after having left a previous association. In this connection, it
						should be recognized that today many lawyers practice in firms, that many
						lawyers to some degree limit their practice to one field or another, and that
						many move from one association to another several times in their careers. If
						the concept of imputation were applied with unqualified rigor, the result would
						be radical curtailment of the opportunity of lawyers to move from one practice
						setting to another and of the opportunity of clients to change
						counsel.
(5) Paragraph (b) operates
						to disqualify the lawyer only when the lawyer involved has actual knowledge
						information protected by Rules
						1.6 and
						1.9(c). Thus, if
						a lawyer while with one firm acquired no knowledge of information relating to a
						particular client of the firm, and that lawyer later joined another firm,
						neither the lawyer individually nor the second firm is disqualified from
						representing another client in the same or a related matter even though the
						interests of the two clients conflict. See Rule
						1.10(b) for the
						restrictions on a firm once a lawyer becomes associated with a firm, including
						screening provisions. See Rule
						1.10(c) for the
						restrictions on a firm once a lawyer has terminated association with the
						firm.
(6) Application of paragraph
						(b) depends on a situation's particular facts, aided by inferences, deductions
						or working presumptions that reasonably may be made about the way in which
						lawyers work together. A lawyer may have general access to files of all clients
						of a law firm and may regularly participate in discussions of their affairs; it
						should be inferred that such a lawyer in fact is privy to all information about
						all the firm's clients. In contrast, another lawyer may have access to the
						files of only a limited number of clients and participate in discussions of the
						affairs of no other clients; in the absence of information to the contrary, it
						should be inferred that such a lawyer in fact is privy to information about the
						clients actually served but not those of other clients. In such an inquiry, the
						burden of proof should rest upon the firm whose disqualification is
						sought.
(7) Independent of the
						question of disqualification of a firm, a lawyer changing professional
						association has a continuing duty to preserve confidentiality of information
						about a client formerly represented. See Rules 1.6 and 1.9(c).
(8) Paragraph (c) provides that information
						acquired by the lawyer in the course of representing a client may not
						subsequently be used or revealed by the lawyer to the disadvantage of the
						client. However, the fact that a lawyer has once served a client does not
						preclude the lawyer from using generally known information about that client
						when later representing another client.
(9) The provisions of this Rule are for the
						protection of former clients and can be waived if the client gives informed
						consent. See Rule
						1.0 (e). With
						regard to the effectiveness of an advance waiver, see Comment (22) to Rule
						1.7. With regard to
						disqualification of a firm with which a lawyer is or was formerly associated,
						see Rule 1.10.