MRPC: 1.9, 1.10, and 1.11: DUTIES TO FORMER CLIENTS, MOBILITY, COI SCREENS

Question 1

What does Rule 1.9(a) say?

Answer 1

(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 written consent.

Question 2

What is the difference between Rules 1.7 and 1.9(a)?

Answer 2

1.7 has four conditions to cure a conflict whereas 1.9 has one → 1.9 is easier

To cure a conflict under 1.9(a) only requires informed consent: You do not need to ask if the lawyer can competently and diligently represent the client

Question 3

True or false: Once a client’s case is complete, a lawyer’s duties are also over.

Answer 3

False. 1.9 [1]

Even if the client-lawyer relationship is over, the lawyer still has a duty to maintain confidentiality

Question 4

Is a lawyer’s involvement clear and definite? Give an example

Answer 4

Not always. Rule 1.9(a) [2]
Lawyer’s involvement in a matter can be a question of degree

Ex: Analytica case: The meaning of the client and lawyer was stretched by J. Posner because the lawyer had the same amount of information from J.Malec and NPD no matter who the client really was.

PLUS NPD benefitted from lawyer’s services

Question 5

What does “substantially related” mean in relation to Rule 1.9(a)?

Answer 5

[3] It is not about whether confidential information did in fact pass: Could it have passed in the normal course of representation?

+ Matters are substantially related IF confidential information COULD have passed from the client to the law firm and it is material
+ Presumption: If it could have passed ⇒ substantially related
+ Substantially related = broad

Question 5

What does “substantially related” mean in relation to Rule 1.9(a)?

Answer 5

[3] It is not about whether confidential information did in fact pass: Could it have passed in the normal course of representation?

+ Matters are substantially related IF confidential information COULD have passed from the client to the law firm and it is material
+ Presumption: If it could have passed ⇒ substantially related
+ Substantially related = broad

Question 6

True or false: Rule 1.9(b) applies to mobility (lawyers moving from one firm to another) and competing interests.

Answer 6

True. Rule 1.9(b) says:

(b) A lawyer shall not knowingly represent a person in the same or 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
(2) About whom the lawyer had acquired information protected by 1.6 and 1.9(c) that is material to the matter, unless the former client gives informed consent.

Question 7

Explain what competing considerations might present themselves when lawyers move between firms, as referenced in Rule 1.9(b). Give an example.

Answer 7

[4] Lawyers moving between firms → mobility is very common these days

Competing considerations include
+ Client previously represented by the former firm must be reasonably assured that the principle of loyalty is not compromised
+ Not so broadly applied as to prevent other persons from reasonable choice of legal counsel

Ex: Mailer v Mailer
+ Allowed side-switching “as close to the outer limits as we want to go”
+ Lawyers should not be hampered from taking on any new clients or making new biz relationships

Question 8

What does Rule 1.9(c) say?

Answer 8

Lawyer who has formerly represented a client, shall not thereafter:

(1) Use information to the disadvantage of the former client, unless the Rules permit the use or the information has become generally known, OR
(2) Reveal information relating to the representation except as the Rules permit or require the disclosure

Question 9

Can a lawyer reveal confidential information about a former client to a current client?

Answer 9

NO! [8]
Lawyer cannot reveal confidential information from former to current clients
HOWEVER
If the information is readily available, it can be used to former client’s disadvantage

Remember: Confidentiality under 1.6 never dies

Question 10

Why do we need Rule 1.9(c)(2)? How could it be used to a lawyer’s advantage?

Answer 10

Confidentiality under 1.6 never dies. Lawyer could impress the client and reveal insider information, letting the client know it can’t be introduced into court.

Question 11

In the Maritrans case, why would a firm like Pepper do what they did with former/current client conflicts?

Answer 11

Increased specialization → worth risking one client $ to get 3-4 more in the same industry (set of potential clients is relatively small)

Big mistake was to obtain consent in a threatening way. Don’t put your client in a corner. Have better screens, hire new lawyers.

Question 12

How was the Maritans/Pepper conflict cure insufficient under 1.9(c)? They got client consent…

Answer 12

Consent was given by client BUT but the consent was coerced and it was a lie. Client was vulnerable.

Question 13

Does the possibility of subsequent harm itself require disclosure and consent under Rule 1.7?

Answer 13

No. Maling case.
The mere possibility of subsequent harm does not itself require disclosure and consent under 1.7.

Instead, look at the situation/context and determine the likelihood of material interference with lawyer’s judgment and ability to represent the client.

Question 14

If a client claims that there’s a conflict in the firm’s representation of his interests, does that mean there’s a conflict?

Answer 14

Not necessarily. Look at the Maling case. The firm performed the services that were within their scope and successfully got the client patents. When the client asked them to perform work that would be a conflict, the firm refused.

Should the firm have foreseen conflict down the line? Sure, but they didn’t do anything wrong.

Question 15

Why did the court rule in the lawyer defendant’s favor in the Brennans case?

Answer 15

If the court finds that Mr. Wegman previously represented plaintiff and defendant jointly, we can see no reason why Mr. Sprung should be disqualified

How does that work? 1.6 and 1.9 → confidentiality doesn’t attach between co-clients, any information passed between Wegman and Sprung has already been disclosed between P and D

Question 16

What are some special considerations lawyers should be careful of when representing multiple clients under one matter?

Answer 16

Rule 1.7 [29]
Lawyers should be careful in representing multiple clients under one matter
+ $$$, loyalty, reputation, sanctions, or worse
+ Some situations are impossible to bypass, you can’t represent
+ Lawyers cannot undertake representation of clients where contentious litigation or negotiations are imminent or contemplated
+ When impartiality cannot be maintained
+ Any limitations on scope of representation

Question 17

Name some issues with confidentiality and loyalty when it comes to conflicts under 1.7 or 1.9.

Answer 17

[30] [31] Confidentiality and Loyalty
+ Prevailing rule w/commonly represented clients → privilege does not attach
+ Both clients should be advised
+ Lawyer has equal duty of loyalty to both clients
+ Clients have a right to information bearing on representation that might affect the client’s interests and the right to expect that their lawyer will use that information to the client’s benefit
+ Lawyer should withdraw if one client wants the lawyer to keep material information confidential AND such information adversely affects the other client

Question 18

Can a lawyer who has formerly represented a client use information to the disadvantage of the former client?

Answer 18

Rule 1.9(c) NO, unless…

The rules permit the use or the information has become generally known.

Question 19

Can a lawyer who has formerly represented a client reveal information relating to the representation?

Answer 19

No. Rule 1.9(c)

Unless the rules permit or require the disclosure, this is not allowed.

Question 20

How do Rules 1.9(b) and 1.10 work together?

Answer 20

1.9 and 1.10 work together as a “fix” for mobility

Question 21

Can lawyers who are associated with a firm represent any client that any lawyer at the firm is prohibited from representing under Rules 1.7 or 1.9?

Answer 21

NO. Rule 1.10(a)
While lawyers are associated at a firm NONE of them shall represent a person that ANY ONE of them would be prohibited from representing under 1.7 or 1.9

Rule 1.8 has its own imputation.

Question 22

Do staff attorneys “count” towards firm association in regards to Rule 1.9(a)? What about student lawyers or externs?

Answer 22

Re: staff attorneys, Not sure. Look at the facts of the case and context.

Re: student lawyers or externs? Yes, probably so.

If a conflict is found, a screen will be put into place.

Question 23

If one lawyer is tainted at a firm, are all lawyers at the firm disqualified?

Answer 23

Rule 1.10(a). Yes, UNLESS…
The disqualification is based on a personal interest, AND does not present a significant risk of materially limiting the representation. Ex: Politics, sexuality, etc.

Question 24

If a lawyer’s prohibition to represent a client is based on 1.9(a) or (b) AND arises from the lawyer’s association with a prior firm, is everyone at the firm prohibited from representing the client?

Would the situation be different if a lawyer didn’t move from one firm to another?

Answer 24

No. Exception to Rule 1.10(a)
The rules only allow a screen in situations of lawyer mobility
If you are a lawyer at law firm A, and you move to law firm B, you can be screened.

The rules do not allow screens in stationary (non-mobile) situations UNLESS the client gives informed consent → happens in Colorado all the time with non-mobility conflicts. Both clients agree because they don’t want to seek new counsel.

Question 25

How would a firm satisfy Rule 1.9(a)(2) regarding screens?

Answer 25

(i) Screen must be timely and apportioned no part of the fee:
There is no scenario where an associate gets apportioned part of the fee – only applies to partners
(ii) Written notice is promptly given to any affected former client
Unlike in 1.7 and 1.9 where they need informed consent – they only need notice in this scenario
(iii) Certification of compliance and what the screen looks like → procedural

Question 26

Does Colorado follow Rule 1.10(a)(ii) regarding screens?

Answer 26

Colorado does not follow Rule 1.10(a)(ii) → 1.10(e) is their solution to give clients more power

You can only screen a lawyer that did NOT personally and substantially participate in the matter → limits lawyers and helps clients have say

Screens are fine, but it doesn’t prevent imputation

Question 27

To whom does Rule 1.10(b) apply? What does it say? Cite an example.

Answer 27

1.10(b) Applies to the OLD FIRM and NEW CLIENTS
When a lawyer has terminated an association with a firm – the old firm is not prohibited thereafter from representing a client with interests materially adverse to a client represented by the former lawyer of the firm, UNLESS:
+ The matter is the same or substantially similar, AND
+ A lawyer (or the firm) remaining in the firm has info protected by 1.6 and 1.9

Ex: L moves to a new firm and takes a few clients with them → the former firm can still represent new clients that have adverse interest to the old lawyer

Question 28

To whom does Rule 1.9(b) apply? What does it say? Give an example.

Answer 28

1.9(b) Applies to the LAWYER at NEW FIRM
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:
+ Whose interests are materially adverse to that person; AND
+ About whom the lawyer had acquired information protected by 1.6 and 1.9

Ex: L moves to a new firm and some of L’s clients stay behind with the old firm. Lawyer will not have to be screened for all incoming clients that came from your former firm that Lawyer knew nothing about!

Question 29

To whom does Rule 1.11(a) apply? What does it say?

Answer 29

(a) Moving from PUBLIC TO PRIVATE employment:
(1) Lawyer making such a move is first subject to 1.9(c) (may not use or reveal confidential information of a confidential client) AND
(2) Shall not otherwise rep a client in connection with a matter in which the lawyer participated personally and substantially as a public officer, unless the appropriate government agency gives its informed consent in writing, to the representation: applies regardless of whether is adverse to

Question 30

How would Rule 1.11(a) be employed in practice?

Answer 30

1) We ask, is there a conflict BUT here there is a modified or relaxed rule in 1.11(a)(2)?
2) Personally and substantially ⇒ Departure from normal conflict rules
+ Significant risk of material limitation with another lawyer in the firm would be enough in the usual context (lower standard)
+ Reduction in the scope of what constitutes a conflict

Question 31

Can a disqualified lawyer under Rule 1.9(a) undertake representation?

Answer 31

Rule 1.11(b) When the lawyer is disqualified under (a), (when they personally and substantially participated), no lawyer can undertake the representation, UNLESS…

(1) Disqualified lawyer is timely screened and is apportioned no part of the fee; and
(2) Written notice is promptly given to the appropriate gov’t agency to enable it to ascertain compliance with the provisions of this rule.

Question 32

If a public lawyer obtained confidential information from the government able to take advantage of that knowledge when they represent private clients?

Answer 32

No. Rule 1.11(c)
Prevents lawyers who acquired confidential information (from the gov’t) to take advantage of that knowledge when they represent private clients, UNLESS you can get that info through FOIA or in public domain.

Question 33

To whom does Rule 1.11(d) apply? What does it say?

Answer 33

Deals with a lawyer going from PRIVATE TO PUBLIC/currently working in public employment:
(1) Subject to rules 1.7 and 1.9
(2) The lawyer shall not (mandatory)
(i) Participate in a matter in which the lawyer participated personally and substantially while in private practice, UNLESS the appropriate gov’t agency gives its informed consent, confirmed in writing
We want to ensure that the gov’t agency can weigh in on the
(ii) The lawyer shall not negotiate for private employment with the party or lawyers in the matter the lawyer is personally and substantially involved in

Question 34

Why is Rule 1.11(d)(1) in place?

Answer 34

All your former clients from the private law firm get the protection of 1.9

Question 35

Why is Rule 1.11(d)(2)(i) in place?

Answer 35

We want to ensure that the gov’t agency can weigh in on the conflict and protect their reputation or appearance of impropriety

Question 36

True or false: Rule 1.11(3) is a narrow interpretation of the term “matter”

Answer 36

False. 1.11(e)

Matter ⇒ Wider expansion of the term matter