skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Kentucky Legal Ethics

1.9  Rule 1.9 Conflict of Interest: Former Client

1.9:100 Comparative Analysis of Kentucky Rule

1.9:101 Model Rule Comparison

In 1999, the Kentucky Supreme Court amended KRPC 1.9 to read substantially the same as MR 1.9 except that KRPC 1.9 restructures paragraph (a) {KRPC 1.9(a)} by putting the "(a)" after "thereafter" in the first sentence and KRPC 1.9(b) omits the phrase "A lawyer shall not knowingly" before "represent a person …."  Also, MR 1.9(a) uses the words "gives informed consent, confirmed in writing," where KRPC 1.9(a) requires only that the client "consents after consultation."  The same difference occurs in subsection (b)(2){KRPC 1.9(b)(2)}{MR 1.9(b)(2)}.  Finally, in MR 1.9(c)(1), the rule allows an exception as "these Rules would permit . . . "; KRPC 1.9(c)(1) allows the exception "as Rule 1.6 or Rule 3.3 would permit . . . ."  The same language difference occurs in subsection (c)(2) {MR 1.9(c)(2)} {KRPC 1.9(c)(2)}.

Comments [1] and [2]{KRPC 1.9, Comment [1]; KRPC 1.9, Comment [2]}{MR 1.9, Comment [1]; MR 1.9, Comment [2]} of the KRPC and MR are very similar.  However, MR 1.9, Comment [3], a description of "substantially related" has no counterpart in the KRPC.  MR 1.9, Comment [4], in substantially the same form, can be found at KRPC 1.10, Comment [7].  MR 1.9, Comments [5] and [6]{MR 1.9, Comment [5]; MR 1.9, Comment [6]}, analyzing subsection (b), have no counterpart in the KRPC.  MR 1.9, Comment [9] and KRPC 1.9, Comment [4] discuss waiver; the Kentucky comment focuses on when a waiver may be in effect, and the Model Rules refer the reader to other sections for more information.  KRPC 1.9, Comment [3] and MR 1.9, Comment [3] use almost identical language to describe the appropriate use of information learned about a client in the course of representation.

1.9:102 Model Code Comparison

There was no counterpart to this Rule in the Disciplinary Rules of the Model Code. Representation adverse to a former client was sometimes dealt with under the rubric of Canon 9 of the Model Code, which provided, "A lawyer should avoid even the appearance of impropriety." Also applicable were EC 4-6 which stated that the "obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment" and Canon 5 which stated that "[a] lawyer should exercise independent professional judgment on behalf of a client."

The provision for waiver by the former client in paragraphs (a) {KRPC 1.9(a)}and (b) {KRPC 1.9(b)} is similar to DR 5-105(C).

The exception in the last clause of paragraph (c)(1) {KRPC 1.9(c)(1)} permits a lawyer to use information relating to a former client that is in the "public domain," a use that was also not prohibited by the Model Code, which protected only "confidences and secrets." Since the scope of paragraphs (a) {KRPC 1.9(a)} and (b) {KRPC 1.9(b)} is much broader than "confidences and secrets," it is necessary to define when a lawyer may make use of information about a client after the client-lawyer relationship has terminated.

1.9:200 Representation Adverse to Interest of Former Client--In General

KRPC 1.9(a) governs the situation where a lawyer has represented a former client in a matter and then is asked to represent a new client in a "substantially related " matter, where the new client would have interests "materially adverse" to those of the former client.  This conflict can be overcome if the client consents after consultation by the lawyer. KRPC 1.9, Comment [4] reiterates that a client may waive the protections afforded by this rule.

This rule is styled to preserve the duty of loyalty to the new client while simultaneously preserving the duty of confidentiality to the former client.  Fortune, Underwood & Imwinkelried, Modern Litigation and Professional Responsibility Handbook:  The Limits of Zealous Advocacy § 3.6.1 (2nd Ed. 2001).

As to unrelated matters, "[n]o rule in the Code or Model Rules prohibits subsequent adverse representation in an unrelated matter:  Absent some substantial relationship between the new matter and the representation of the former client, the former client&'s consent is unnecessary." Fortune, Underwood & Imwinkelried, Modern Litigation and Professional Responsibility Handbook:  The Limits of Zealous Advocacy § 3.6.4 (2nd Ed. 2001).

1.9:210 "Substantial Relationship" Test

Once a "substantial relationship" between the former representation and the new representation has been shown, there is a presumption that confidential information was disclosed, and the moving party need not show that the attorney had actual knowledge of the confidential information.  However, what constitutes a substantial relationship is unclear. KRPC 1.9, Comment [2] says only that "[t]he scope of the matter . . . may depend on the facts of a particular situation or transaction," and notes that "[t]he 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."  The Seventh Circuit has developed a three-part test:  First, the court will inquire into the facts of the earlier representation;  next, the court will assume that the lawyer knew about all of the relevant information related to the scope of that earlier representation;  last, the court will look into whether what the lawyer learned in the former representation would be information the new client would need to know for the new representation.  Fortune, Underwood & Imwinkelried, Modern Litigation and Professional Responsibility Handbook:  The Limits of Zealous Advocacy § 3.6.2 (2nd Ed. 2001).   

KBA E-354 (1993) entertains several common questions stemming from Rules 1.9 and 1.10.  One of those involves a lawyer who has moved from one private firm to another and finds that his or her new firm is representing a client with interests adverse to a client of the old firm.  The opinion finds that if the lawyer did not participate in the representation of the former client, or in a substantially related matter, there is no conflict in representing the new client of the new firm.  However, if the lawyer did represent that former client, the lawyer, and all of the lawyers at the new firm are disqualified from representing the new client.  Note, however, that Rule 1.9 allows a client to consent to this sort of conflict.

Two Kentucky cases help illustrate the "substantial relationship" test.  First, in Savage v. Commonwealth, 939 S.W.2d 325 (Ky. 1997), the Kentucky Supreme Court refused to disqualify the lawyers in the prosecutor&'s office when an attorney of record for the defendant moved from the public defender&'s office to the prosecutor&'s office.  The attorney had done only "perfunctory" work on the case at issue before she left the public defender&'s office, and she had had no contact with the prosecutor concerning the case.  Second, in Kentucky Bar Ass&'n v. Newcomer, 977 S.W.2d 20 (Ky. 1998), the Supreme Court disciplined a lawyer for violating Rule 1.9.  The lawyer had a meeting with a potential client, discussing confidential information related to a custody case.  The woman was unable to retain the lawyer; however, when the woman sought an emergency protective order against her ex-husband, the same lawyer represented the ex-husband.  The court cited Rule 1.9 and noted that the woman had not given the lawyer consent to share the confidential information, and she had not waived the conflict.

1.9:220 Material Adversity of Interest

According to KRPC 1.9, Comment [1], the guidelines in Rule 1.7 "determine whether the interests of the present and former clients are adverse."  By way of example, the comment notes that a lawyer could not seek to rescind a contract made by him for a former client in the course of representing the new client.

1.9:230 Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]

While the "appearance of impropriety" standard has been abandoned by the Model Rules as too ambiguous, it remains vital in some states.  See Berry v. Saline Memorial Hospital, 322 Ark. 182, 907 S.W.2d 736 (1995). Fortune, Underwood & Imwinkelried, Modern Litigation and Professional Responsibility Handbook:  The Limits of Zealous Advocacy § 3.6.5 (2nd Ed. 2001).  Kentucky has expressly retained the appearance of impropriety standard for both present and former clients. In Lovell v. Winchester, 941 S.W.2d 466, 469 (Ky. 1997), the Kentucky Supreme Court explained that "[a]lthough the appearance of impropriety formula is vague and leads to uncertain results, it nonetheless serves the useful function of stressing that disqualification properly may be imposed to protect the reasonable expectation of former and present clients.  The impropriety standard also promoted the public&'s confidence in the integrity of the legal profession."  See also Humco v. Honorable Mary C. Noble, 31 S.W.3d 916 (Ky. 2000) (refusing to extend the appearance of impropriety standard to transactions with non-clients).

[See Perspective for Determining Conflict of Interest, supra, at 1.7:230].

1.9:300 Client of Lawyer&'s Former Firm

KRPC 1.9(b) governs the situation in which a lawyer represents a client "in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previous represented a client (1) whose interests are materially adverse" to the new client, and (2) about whom the lawyer has confidential information, "unless the client consents after consultation."

1.9:310 Removing Imputed Conflict of Migratory Lawyer

The Model Rules do not provide for screening of lawyers moving from one private firm to another.  However, Kentucky Rule 1.10 does provide that lawyers moving between private firms who have been disqualified under certain circumstances may be screened, saving their firms from disqualification. [See Removing Imputation by Screening, infra, at 1.10:300.]

KBA E-354 (1993) entertains several common questions stemming from Rules 1.9 and 1.10.  One of those involves a lawyer who has moved from one private firm to another and finds that his or her new firm is representing a client with interests adverse to a client of the old firm.  The opinion finds that if the lawyer did not participate in the representation of the former client, or in a substantially related matter, there is no conflict in representing the new client of the new firm.  However, if the lawyer did represent that former client, the lawyer, and all of the lawyers at the new firm, are disqualified from representing the new client.  Note, however, that Rule 1.9 allows a client to consent to this sort of conflict.  The opinion goes on to investigate the propriety of screening in this situation.  While pointing out that the Model Rules do not specifically provide for screening, the opinion notes that at least one Sixth Circuit case has approved of its use.  See Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988)

Under Rule 1.10, any imputed disqualifications of lawyers associated with changing firms may be waived by the affected client under the consent conditions in Rule 1. 7. KRPC 1.10, comment [d].

1.9:320 Former Government Lawyer or Officer [see 1.11:200]

Rules 1.10, 1.11 and 1.12 adopt "screening" as an appropriate method of removing an imputed conflict of interest.  [See Model Rule Comparison, supra, at 1.10:101 for information about the Model Rules rejection of the screening rule for non-government lawyers.]

1.9:400 Use or Disclosure of Former Client&'s Confidences

KRPC 1.9(c) speaks directly to use and disclosure of client confidences.  This rule incorporates Rules 1.6 and 3.3, reminding the lawyer that those rules apply where the client is not concurrent, but a former client of the lawyer or of the lawyer&'s firm, or former firm.