Louisiana Legal Ethics

1.9 Rule 1.9 Conflict of Interest: Former Client

1.9:100 Comparative Analysis of Louisiana Rule

¥ Primary Louisiana References: LA Rule 1.9
¥ Background References: ABA Model Rule 1.9, Other Jurisdictions
¥ Commentary:

1.9:101 Model Rule Comparison

LRPC 1.9(a) and MR 1.9(a) both prevent a lawyer from representing a client in a matter substantially related to one in which he represented a former client when the clientÕs interests are materially adverse to the former client without the former clientÕs consent after consultation. The Model Rules regulate both the Òuse ofÓ and Òrevealing ofÓ information relating to the representation of a client by an attorney. LouisianaÕs Rules only regulate an attorneyÕs Òuse ofÓ information.

LRPC 1.9(b) prevents a lawyer from using information related to representation of a former client to that clientÕs disadvantage unless such use is permitted under LRPC 1.6 or if the information has become generally known. MR 1.9(c) also prevents an attorney from using this type of information. MR 1.9(c) exceeds the provisions of LRPC 1.9(b) in that it also prevents a lawyer from using information relating to the representation of a former client of the lawyerÕs present or former firm to that clientÕs disadvantage. LRPC 1.9 only addresses clients of the lawyer himself. MR 1.9(c)(1) is also broader in that it allows a lawyer to use information when permitted by Rule 3.3. LRPC 1.9(b) does not expressly include Rule 3.3 as an exception.

Finally, MR 1.9(c)(2) prevents a lawyer from revealing information relating to representation of a former client unless allowed by MR 1.6 or MR 3.3. Louisiana has no similar provision.

1.9:102 Model Code Comparison

LRPC 1.9(a) prevents a lawyer from representing a client in a matter substantially related to that in which the lawyer represented a former client when the new clientÕs interests are materially adverse to the interests of the former client. Such representation is allowed if the former client consents after consultation. The Model CodeÕs closest corollaries, DR 5-107(A) and (B), prevent a lawyer from accepting or continuing to represent a client when it would result in representation of differing interests. DR 5-107(C) allows the lawyer to continue the representation if both clients consent to the representation after full disclosure and, unlike the Louisiana Rule, requires that it be obvious that the lawyer can adequately represent the interests of each client.

LRPC 1.9(b) prevents a lawyer from using information relating to the representation of a former client to that clientÕs disadvantage except in cases where the information has become generally known or where LRPC 1.6 permits. LRPC 1.6 only regulates revealing information, not use. No Louisiana court has addressed whether the reference in LRPC 1.9(b) means that a lawyer can use all of the information that LRPC 1.6 would allow to be revealed or if the rule is more restrictive, allowing the lawyer to only reveal information under the circumstances set forth in LRPC 1.6. DR 4-101(C) makes it clear that, in the types of situations outlined in LRPC 1.6, information may only be revealed by the attorney. It should be noted that, although LRPC 1.9(b) and 1.8(b) are phrased similarly, they are different. While LRPC 1.9(b) applies to cases where the lawyer is using the former clientÕs information to aid in his representation of a new client, LRPC 1.8(b) is implicated when the lawyer is using the former clientÕs information for his own benefit. DR 4-101(B)(2) prevents a lawyer from knowingly using a confidence or secret of the client to the clientÕs disadvantage. The Model Code creates an absolute bar on the use of this information, allowing no exception for cases in which the client consents, as the Louisiana Rule does. Another distinguishing point is that DR 4-101(B)(2) creates a bar only in situations where the attorney has knowledge that his use of the information will pose a disadvantage to his client. Note that DR 4-101(B)(3) allows a client to consent after disclosure to an attorneyÕs use of information for his own or a third personÕs benefit.

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

¥ Primary Louisiana References: LA Rule 1.9(a)
¥ Background References: ABA Model Rule 1.9(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:201, ALI-LGL ¤ 213, Wolfram ¤ 7.4