Comment
[1] After termination of client-lawyer relationship,
a lawyer may not represent another client except in conformity with
the Rule. The principles in Rule 1.7 determine whether the interests
of the present and former client are adverse. Thus, a lawyer could not
properly seek to rescind on behalf of a new client a contract drafted
on behalf of the former client. Similarly, a lawyer who has defended
a client against charges brought by a regulatory agency concerning a
transaction may not later represent another client in a private lawsuit
against the client involving the same transaction, absent the first
client’s informed consent. For the definition of “informed
consent,” see Rule 1.0(e).
[2] The scope of a “matter” for purposes
of this rule may depend 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
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 wholly 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
jurisdiction. 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. Rule 1.9 is intended
to incorporate District of Columbia and federal case law defining the
“substantial relationship” test. See, e.g., Brown v.
District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C.
1984) (en banc); T.C. Theatre Corp. v. Warner Brothers Pictures,
113 F. Supp. 265 (S.D.N.Y. 1953), and its progeny.
[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 to use 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.
[4] Disqualification from subsequent representation
is for the protection of clients and can be waived by them. A waiver
is effective only if there is disclosure of the circumstances, including
the lawyer’s intended role in behalf of the new client. The question
of whether a lawyer is personally disqualified from representation in
any matter on account of successive government and private employment
is governed by Rule 1.11 rather than by Rule 1.9.
[5] With regard to disqualification of a firm with
which a lawyer is associated, see Rules 1.10; for former government
lawyers, see Rule 1.11; for former judges and law clerks, see
Rule 1.11.
