TLIE Top Tip: Amended Rule 1.09(a) Conflicts of Interest with a Former Client: Part 1
TLIE Top TipsRule 1.09 received a complete overhaul and will be examined across two TLIE Top Tips.
Rule 1.09(a) prohibits a lawyer from taking on a new client in the same or substantially related matter as a former client when the new client’s interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing. We previously discussed these new defined terms in our TLIE Top Tips of September 6 and September 13.
Usually it is clear when a matter is the “same.” What can be less clear is when a matter is “substantially related.” New Comment 2 to Rule 1.09 discusses the scope of a “matter” and concludes that if the lawyer’s representation of the former client in a matter was so involved that his representation of the new client can be justly regarded as changing sides, then the “matter” is one to which Rule 1.09(a) applies. According to new Comment 3, matters are “substantially related” when it is the same transaction or dispute, or when there is a substantial risk that the new client’s position in the matter will be materially advanced by confidential information the attorney obtained while representing the former client.
The facts of the particular situation or transaction govern whether a lawyer can move forward with the representation of a new client against a former client. Careful consideration and analysis is required. Because it is largely subjective whether there is a risk that confidential information learned from the former client will materially advance the cause of the new client, the lawyer is unlikely to win that argument if there is a dispute. The provisions of this Rule are for the protection of former clients and can be waived if the former client gives informed consent, confirmed in writing. When it is not clear whether the matter is substantially related, the best practice is to obtain this waiver before the lawyer proceeds with representation of the new client.
A reminder that these new Rules are now in effect as of October 1, 2024, and TLIE has a one-hour ethics CLE available that discusses all of the new Rules.
