TLIE Top Tip: Amended Rule 1.09(b) & (c), Conflicts of Interest with a Former Client: Part 2
TLIE Top TipsAmended Rule 1.09(b), which has been totally rewritten, addresses situations when lawyers move between firms. It operates to disqualify a lawyer who has moved firms when the lawyer has actual knowledge of confidential client information. A simplified example of this is as follows:
- Firm A represented Wife in divorce from Husband;
- Lawyer X did not work on Wife’s case at Firm A, and obtained no confidential information about Wife;
- Lawyer X leaves Firm A to go to Firm B;
- Firm B is subsequently contacted to represent Husband in a modification proceeding related to the divorce.
On these facts, Lawyer X’s migration to Firm B does not conflict Firm B from representing Husband. See, Cmt. 4 to Rule 1.09. However, if challenged, Firm B will have the burden of proof to show that Lawyer X while at Firm A was only privy to information about clients he actually served, and not those of Firm A’s other clients.
If Lawyer X in our example did acquire information about the Wife, then Firm B cannot represent Husband unless Wife gives informed consent, confirmed in writing. Importantly, even if the Wife were to give informed consent, confirmed in writing, Lawyer X is not permitted to use or reveal information relating to her representation to her disadvantage. See, Rule 1.09(c).
These provisions do not operate in a vacuum and there is not a one size fits all determination as to whether a firm may be disqualified. In order to determine whether Firm B is disqualified, there must be an evaluation of the particular facts of the situation, aided by reasonable inferences, deductions and presumptions about the way lawyers work together. See, Cmt. 5 to Rule 1.09.
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
