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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.9 RULE 1.9 DUTIES TO FORMER CLIENTS

1.9:100 Comparative Analysis of Ohio Rule

  • Primary Ohio References: Ohio Rule 1.9

  • Background References: ABA Model Rule 1.9
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.124-5.125, 9.19-9.20

1.9:101 Model Rule Comparison

Ohio Rule 1.9 is substantively identical to the Model Rule.

1.9:102 Ohio Code Comparison

The following are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.9: DR 4-101(B), Kala Aluminum Smelting & Refining Co. (1998), 81 Ohio St.3d 1.

1.9:103 Overview of Ohio Rule 1.9

With respect to confidentiality and conflicts of interests involving former clients, Ohio Rule 1.9(a) continues the "substantial relationship" test applicable under the former OHCPR. Thus, without informed consent by the former client, confirmed in writing, a lawyer who has formerly represented a client in a matter cannot represent another person in "the same or a substantially related matter" where that person's interests are "materially adverse" to the interests of the former client. Rule 1.9(a). Comment [1] states that "[c]urrent and former government lawyers must comply with this Rule to the extent required by Rule 1.11." Ohio Rule 1.9 cmt. [1].

Pursuant to Rule 1.0(n), a

"[s]ubstantially related matter" denotes one that involves the same transaction or legal dispute or one in which there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation of a client would materially advance the position of another client in a subsequent matter.

As the Ohio Code Comparison to Rule 1.9 states, the comments to the Rule are consistent with prior Ohio intermediate appellate court decisions, as well as with 2 Restatement (Third) of the Law Governing Lawyers §  132 (2000), on the substantial-relationship issue. As the Comparison also notes, conflict waivers must now be "confirmed in writing," which is a change from previous Ohio law.

Ohio Rule 1.9(a) applies to migrating and nonmigrating lawyers alike; there is no migration or side-switching prerequisite.

Subject to the former client's informed consent, confirmed in writing, Ohio Rule 1.9(b) prohibits a lawyer's knowing representation of a person in the same or a substantially related matter in which a firm with which the lawyer was associated had represented a client whose interests are materially adverse to that person and about whom the lawyer gained material information protected by Rules 1.6 and 1.9(c). Thus, unlike Rule 1.9(a), which applies irrespective of whether the lawyer changes firms, Rule 1.9(b) is operative only with respect to a migrating lawyer. The "knowingly represent" requirement also distinguishes 1.9(b) from 1.9(a).

Comment [5] states that a lawyer is disqualified under 1.9(b) "only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c)" -- without that knowledge the prohibition is inapplicable, even if the interests of the former firm client and the new client in the same or related matter are in conflict. Ohio Rule 1.9 cmt. [5]. This is yet another difference between divisions (a) and (b). When the former client was directly represented by the affected lawyer (1.9(a)), the Rule does not require an analysis whether the lawyer had acquired protected information; it is presumed. In contrast, when the affected lawyer did not directly represent the former client (1.9(b)), inquiry concerning whether the affected lawyer obtained protected information is required.

Comment [6] notes that in making the determination under 1.9(b), "the burden of proof should rest upon the lawyer whose disqualification is sought." Ohio Rule 1.9 cmt. [6].

Ohio Rule 1.9(c) precludes a lawyer and her present or former firm, who or which has formerly represented a client in a matter, from thereafter (1) using information relating to that representation to the disadvantage of the former client, unless permitted or required by the Rules with respect to a client, or when the information has become generally known; or (2) revealing such information unless permitted or required by these Rules with respect to a client. The 1.9(c) prohibition applies "whether or not a subsequent representation is involved." ABA, Annotated Model Rules of Professional Conduct 168 (6th ed. 2007). With respect to consent under 1.9(c) (which, unlike divisions (a) and (b), does not mention consent), Comment [9] notes that the provisions of Ohio Rule 1.9 are for the protection of former clients; as such they can be waived by informed consent, which consent must be confirmed in writing under 1.9(a) and 1.9(b). In other words, the language in 1.9(c), providing an exception to use or revelation of information relating to the prior representation "as these rules would permit or require with respect to a client," makes nonwritten informed consent effective if it would be effective when given by a current client, as it is for disclosure (Rule 1.6(a)) and for use (Rule 1.8(b)). See section 1.9:400.

Finally, Ohio Rule 1.9(c), like 1.9(a) but unlike 1.9(b), applies to both migrating and nonmigrating lawyers; unlike either 1.9(a) or (b), it also applies to the lawyer's present or former firm, and, as noted above, whether or not there is any subsequent representation.

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

  • Primary Ohio References: Ohio Rule 1.9(a); Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998)
  • Background References: ABA Model Rule 1.9(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.98-5.99, 5.105
  • Commentary: ABA/BNA § 51:201; ALI-LGL § 132; Wolfram § 7.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.98-5.99, 5.105 (1996).

Duties to former clients: Once an attorney-client relationship has been established, the duties of confidentiality and loyalty attach. These duties continue even after the relationship terminates. See section 1.6:220; Ohio State Bar Ass'n Informal Op. 88-6, at 5-6 (Oct. 27, 1988) ("The duty of loyalty owed by a lawyer to his client with respect to matters as to which the lawyer acted as counsel survive the formal conclusion of the lawyer-client relationship to the extent that, having represented a party to a transaction, a lawyer may not thereafter represent the other party in an action against his former client arising out of or closely related to the transaction."). Nevertheless, the duty of loyalty in particular is diminished after the relationship is terminated. For example, while opposing a present client on another matter unrelated to the representation of that client creates a conflict under Ohio Rule 1.7, see section 1.7:310, this is not true for a former client. The basic distinction was summarized by Sixth District Court of Appeals in a pre-Rule case:

Where an attorney seeks to represent a client with interests adverse to a former client, the attorney will be disqualified only where the present litigation bears a "substantial relationship" to the prior representation. . . . However, where an attorney undertakes employment against a current client, the rule is much more strict. "Where the relationship is a continuing one, adverse representation is prima facie improper, * * * and the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation." [quoting Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976)].

Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d 255, 262, 611 N.E.2d 873, 877 (Wood 1992) (emphasis in originals; citations, other than Cinerama, omitted); accord Sarbey v. Nat'l City Bank, 66 Ohio App.3d 18, 583 N.E.2d 392 (Summit 1990).

The "substantial relationship" test is further discussed in section 1.9:210. Determining whether interests are sufficiently adverse to raise a conflict is discussed in section 1.9:220.

When does a client become a "former client"?: In many instances, there is a clear indication, such as a termination letter, that the client's representation has come to an end, thus making the client a former client. In other instances, however, the termination may be less clear. Compare Hatfield v. Seville Centrifugal Bronze, 106 Ohio Misc.2d 10, 732 N.E.2d 1077 (C.P. Medina 2000) (court held that where lawyer providing annual advice and services to a client took no action formally to notify client that representation had ceased, client remained current client of the lawyer for the following year for conflicts purposes), with Artromick, Int'l, Inc. v. Drustar, Inc., 134 F.R.D. Supp. 226 (S.D. Ohio 1991) (even though lawyer's last bill remained unpaid and disputed, where lawyer had not performed services for client for more than one year and client was using new lawyer, movant was "former client" and therefore could not disqualify lawyer from representing opposing party in subsequent unrelated matter).

Related to this issue is the "hot potato" situation, where a lawyer drops one client in order to accept another, more desirable, client adverse to the first client. This effort to turn an existing client into a "former" client is seldom successful. See, e.g., Pioneer-Standard Elecs., Inc. v. Cap Gemini Am., Inc., No. 1:01 CV 2185, 2002 U.S. Dist. LEXIS 7120 (N.D. Ohio Mar. 11, 2002) (refusing to recognize ploy: "for purposes of determining the status of an attorney-client relationship within the context of adverse representation, courts will not honor an attorney's unilateral termination of the relationship"). See also 2 Restatement (Third) of the Law Governing Lawyers §  132 cmt. c (2000). In contrast, when through actions of a client, such as a corporate merger or acquisition, a conflict is created between two existing clients, some courts have given lawyers latitude and have allowed the lawyer to drop one client, which becomes a former client, and retain the other as a present client. E.g., Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1127 (N.D. Ohio 1990), discussed in section 1.7:300 at "Conflicting interests between clients - Overview." See 2 Restatement (Third) of the Law Governing Laywers §  132 cmt. j (2000).

Former-client conflicts and consent: Where a conflict involving a former client arises, it can be cured under the Rule by informed consent from the former client, which, under Ohio Rule 1.9(a) and (b), must be confirmed in writing.

Does the consent of the current client need to be obtained as well? No and, in limited circumstances, perhaps yes. The general rule clearly is that current-client consent need not be obtained. See Ohio Rule 1.9(a) & (b) and cmt. [9] ("The provisions of this rule are for the protections of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under divisions (a) and (b)."). The writing requirement was added to MR 1.9 by the 2002 ABA amendments and "reflects a judgment . . . that both lawyers and their former clients benefit when the lawyer is required to secure the former client's informed consent, confirmed in writing, to a representation that is materially adverse to the former client in the same or a substantially related matter." Reporter's Explanation of Changes, Aug. 2001. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 13.2, at 13-4 (3d ed. Supp. 2005-1):

In Rule 1.9 as elsewhere in the law of lawyering, the chief device for "curing" conflicts of interest is full disclosure to the affected clients – here former clients – followed by informed client consent to continuation of the otherwise problematic representation.

(Consistent with the Hazard and Hodes analysis and the express language of Rules 1.9(a) & (b), the reference in Comment [1] to the lawyer's obtaining informed consent of "all affected clients" in a situation where the lawyer had represented multiple clients but ended up representing one of the clients against the other (now former) clients should be read as requiring the consent of the former clients as the ones "affected." This reading is further bolstered by the cross-reference in Comment [1] to Comment [9], quoted above.) Compare 2 Restatement (Third) of the Law Governing Lawyers § 132 (2000) (requiring the consent of both former and present clients). See also Hazard and Hodes, noting this difference from the Model Rule. 1 The Law of Lawyering § 13.3, at 13.9.

The one instance in which consent of the current client might be required arises when Ohio Rule 1.7(a)(2) is implicated, and the lawyer's ability to competently represent the current client is at significant risk of being materially limited because of the lawyer's "responsibilities to . . . a former client . . . ." In such case, the representation cannot go forward unless, inter alia, "each affected client gives informed consent, confirmed in writing." Ohio Rule 1.7(b)(2). In these circumstances, the current client is obviously an "affected client."

Because of constitutional implications, the consent rules are somewhat different in the criminal arena. In State v. Turner, No. 18554, 2001 Ohio App. LEXIS 2214 (Montgomery May 18, 2001), the state filed a motion to disqualify the public defender's office's representation of the defendant because the office had on three prior occasions represented the victim in the current case. Defendant's lawyer stated to the court that his client was fully apprised of the situation and wanted counsel to continue to represent him. The trial court denied the motion. Reversing, the appellate court held that counsel's representations were insufficient; on remand, the trial court must inquire directly of the defendant as to his knowledge of the potential conflict and whether he wishes to waive the conflict. And, even if the defendant does waive the conflict, in the criminal context the trial court has the discretion to disqualify where a potential conflict of interest exists. See State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998) (no abuse of discretion in disqualifying defendant's lawyers, who had previously represented another defendant in prosecution arising from same set of facts; "it is irrelevant that both [defendants] waived their right to conflict-free counsel."  Id. at 137, 689 N.E.2d at 937). [Curiously, the Court made no reference to the appearance of one of the disqualified counsel as counsel to Keenan in his appeal to the Supreme Court. See  id. at 136, 689 N.E.2d at 936.] These decisions are consistent with federal constitutional law applicable in criminal cases, pursuant to which consent is not necessarily dispositive; a court may disallow the subsequent representation even if both former and current clients consent. As the Supreme Court held in Wheat v. United States, 486 U.S. 153 (1988), the existence of a serious potential for conflict of interest can overcome the Sixth Amendment presumption in favor of the defendant's right to select counsel of choice. See ABA, Annotated Model Rules of Professional Conduct 167 (6th ed. 2007) (commentary).

The Kala decision - Side-switching and former-client conflicts: The major case in Ohio on side-switching and former-client conflicts is Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998).

Kala was a wrongful termination case. The plaintiff was represented by lawyer A. Trial resulted in a directed verdict for the employer. While the case was pending on appeal, taken by lawyer A on plaintiff's behalf, and after lawyer A had obtained an extension of time within which to file plaintiff's appellate brief, lawyer A announced his intention to leave his firm and join the firm representing the defendant.

Before lawyer A joined defendant's firm, that firm acted promptly to put screening devices in place. These included erecting an ethical screen, sending the trial documents to off-site storage, where they were accessible only if the requesting lawyer signed for them, and making the appellate file available only through the lawyer handling the appeal for the defendant. Lawyer A submitted an affidavit stating that he had discussed the case with no one at his new firm and that no one at the new firm had discussed it with him. Plaintiff's lawyers filed a motion with the court of appeals to disqualify defendant's firm on conflict-of-interest grounds. The appellate court granted the motion without opinion, and the Supreme Court allowed defendant's discretionary appeal.

In a case of first impression in Ohio, the Supreme Court affirmed the disqualification:

The issue before the court is whether a law firm should be automatically disqualified from representing a party when an attorney leaves his or her former employment with a firm representing a party and joins the law firm representing the opposing party, or whether that law firm may overcome any presumption of shared confidences by instituting effective screening mechanisms.

Id. at 3, 688 N.E.2d at 261. The Court's answer was that the presumption is rebuttable (syllabus), but that in the particular circumstances of this case — which involved lawyer A, while the case was pending on appeal, negotiating for a job with the opposing law firm without informing his client — no screening devices could be deemed adequate.

In commencing its analysis, the Court looked to ethical considerations and stressed the importance of the obligation to preserve client confidences (former OH DR 4-101), which obligation continues after termination of representation. The Court further looked to former OH DR 5-105, which "speaks to imputed disqualification," 81 Ohio St.3d at 4, 688 N.E.2d at 262 (quoting OH DR 5-105(D)):

"If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."

Id. at 5, 688 N.E.2d at 262 (emphasis by the Court).

After tracing the history of disqualification motions and the development of modern standards of disqualification, the Court set forth the applicable tripartite test -- whether there is a substantial relationship between the two matters; if so, whether the presumption of shared confidences at the former firm is rebutted by evidence that the migrating attorney had no knowledge of the matter; and, if the lawyer did have confidential information, whether the new firm erected effective screens to rebut the presumption of shared confidences at the new firm.

As to the first two aspects of the test, the Court had little difficulty deciding that the matters were substantially related (indeed, it was one and the same case) and that the presumption of shared confidences at the former firm could not be rebutted, inasmuch as lawyer A was the lead lawyer on the case for the former client. Id. at 13, 688 N.E.2d at 268.

With respect to the third part of the test, the Supreme Court decided that since lawyer A must have been negotiating for employment with defendant's law firm while he was actively pursuing the appeal on behalf of plaintiff, without informing plaintiff of these facts, id. at 14, 688 N.E.2d at 268,

[t]he appearance of impropriety is so strong that nothing that [defendant's] firm could have done would have had any effect on [plaintiff's] perception that his personal attorney had abandoned him with all of his shared confidences and joined the firm representing his adversary while the case was still pending. No steps of any kind could possibly replace the trust and confidence that [plaintiff] had in his attorney or in the legal system if such representation is permitted. This is the classic "side-switching attorney" case.

We find that under this set of egregious facts, the appearance of impropriety was so great that the attempts by [defendant's firm] to erect a Chinese wall were insufficient to overcome the appearance of impropriety.

Id. (bracketed material added).

The resulting syllabus (which stated the controlling law under the reporting rules then in force), joined in by five of the seven justices, is as follows:

In ruling on a motion for disqualification of either an individual (primary disqualification) or the entire firm (imputed disqualification) when an attorney has left a law firm and joined a firm representing the opposing party, a court must hold an evidentiary hearing and issue findings of fact using a three-part analysis:

1) Is there a substantial relationship between the matter at issue and the matter of the former firm's prior representation;

2) If there is a substantial relationship between these matters, is the presumption of shared confidences within the former firm rebutted by evidence that the attorney had no personal contact with or knowledge of the related matter; and

3) If the attorney did have personal contact with or knowledge of the related matter, did the new law firm erect adequate and timely screens to rebut a presumption of shared confidences with the new firm so as to avoid imputed disqualification?

81 Ohio St.3d at 1, 688 N.E.2d at 260 (syllabus).

While both the syllabus and the opinion clearly state that the presumption of shared confidences at the new firm is rebuttable (this is "the fairer rule in balancing the interests of the parties and the public,"  id. at 10, 688 N.E.2d at 265-66), the actual holding of the Court, as noted, was that the facts of this case were so "egregious" that the timely and apparently effective screening devices by the new firm could not overcome the appearance of impropriety.  Id. at 14, 688 N.E.2d at 268. Interestingly, while the Court drew heavily on the well-developed Seventh Circuit law in this area, and even cited Cromley v. Bd. of Educ., 17 F.3d 1059 (7th Cir. 1994), in support, the Kala result is difficult to reconcile with that reached in Cromley. The Cromley court found screening mechanisms comparable to those in Kala to be adequate to rebut the presumption of shared confidences at the new firm and to prevent imputed disqualification of the new firm, even though Cromley, like Kala, was a "classic 'side-switching attorney' case" involving a lead lawyer. Once again, the undisclosed negotiations by Kala's lawyer with the opposing law firm may have been the distinguishing factor. See also Legge Assocs., Inc. v. Dayton Power & Light Co., 113 F.3d 1235, 1997 U.S. App. LEXIS 8702 (6th Cir. 1997) (table) (movant for disqualification argued (in language similar to that used by the Kala Court) that where lawyer for movant joins (via merger) firm representing opponent in same case "'[n]o "Chinese Wall" can be constructed that can eliminate this obvious impropriety,'" 1997 U.S. App. LEXIS 8702, at *9, but Sixth Circuit, relying on Manning v. Waring, Cox, James, Dklar & Allen, 849 F.2d 222 (6th Cir. 1988), disagreed and held that where lawyer ceases his old representation before joining new firm, firm is not disqualified so long as it can show that no client confidences had been shared and screening mechanisms were in place to prevent any future disclosure).

Relationship between Kala and Ohio Rule 1.9: According to the Ohio Code Comparison to Rule 1.9, the first two prongs of the Kala test are reflected in Ohio Rule 1.9(a) and (b). (The third prong is treated in Ohio Rule 1.10(c) and (d). See section 1.10:300.)

Kala and Rule 1.9(a): In the words of the Ohio Code Comparison,

Division (a) restates the substantial relationship test, which extends confidentiality protection to clients the lawyer has formerly represented. This test presumes that the lawyer obtained and cannot use information relating to the representation of the former client in the same or substantially related matters, the first prong of the Kala test.

Put another way, "In Kala, the Court extended the confidentiality protection of DR 4-101 to former clients by creating a presumption of shared confidences between the former client and lawyer [Rule 1.9(a)]." Id. (Bracketed material in original.)

With respect, these statements do not accurately reflect either the substance of Ohio Rule 1.9(a) or the first prong of the Kala test. To take the last first, the first prong of the Kala test is limited to the question whether there exists "a substantial relationship between the matter at issue and the matter of the former firm's prior representation." Period. Presumptions are not operative. Second, and at least as important for present purposes, Ohio Rule 1.9(a) likewise contains no reference to "presumptions." If there is no former-client consent, the Rule is absolute: a lawyer "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 a client that the lawyer had formerly represented. Period. Stated differently (if one wants to talk in terms of presumptions), the "presumption" of shared confidences between the former client and the lawyer is irrebuttable under Rule 1.9(a). See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering §  13.5, at 13-16 (3d ed. Supp. 2005-1) (noting that MR 1.9 cmt. [3] employs this analysis). The irrebuttability of the "presumption" of shared confidences under Ohio Rule 1.9(a) stands in contrast to the rebuttable presumption under the second prong of the Kala rule.

Kala and Rule 1.9(b): The Ohio Code Comparison to Rule 1.9 states that division (b)

applies where the lawyer's [former] firm (but not the lawyer personally) represented a client, and requires that the former client show that the lawyer in question actually acquired confidential information, the second prong of the Kala test.

(Bracketed material added.) The Comparison elaborates that the Kala presumption of shared confidences (which is described as being "between the former client and lawyer"; actually, for purposes of the second prong of Kala, it is "within the former firm," Kala (syllabus)) "could be rebutted by evidence that the lawyer had no personal contact with or knowledge of the former client matter [Rule 1.9(b)]." (Bracketed material in original.)

With regard to 1.9(b) and the above statements, the following comments are in order: Division (b) does not expressly address the question of burden of proof on the issue whether the lawyer had actual knowledge. Kala clearly puts on the lawyer for the former client the burden of rebutting the presumption of shared confidences, and this is consistent with the second of the summations of 1.9(b) set forth above. The first articulation -- that the burden is on the former client -- is in error and inconsistent with Kala, the second prong of the syllabus of which expressly recognizes that there is a presumption of shared confidences and goes on to state that the question is whether this presumption within the former firm is "rebutted by evidence that the attorney had no personal contact with or knowledge of the related matter." (Obviously, that evidence would come from the lawyer, not the former client.) This reading is likewise consistent with Ohio Rule 1.9 cmt. [6], which states that the burden should rest on the lawyer.

Kala and Rule 1.9(c): As the Ohio Code Comparison to Rule 1.9 sets forth, division (c) provides that in prior representation by either the lawyer or the lawyer's past or present firm,

the prohibitions against use [Model Rule 1.8(b)] and disclosure (Model Rule 1.6) that protect current clients also extend to former clients. This is the foundation of the Kala opinion, which extended the prohibitions against use or disclosure of client confidences or secrets in DR 4-101(B) to former clients.

(Brackets in original.) The Comparison further notes that Kala "clarified that the DR 4-101(B) prohibition against using or revealing client confidences or secrets without consent applied to former clients [Rule 1.9(c)]." (Brackets in original.) (The Rule 1.9(c) prohibition applies to use or revelation of "information relating to the representation," not just confidences or secrets. Id. See Ohio Rule 1.6 cmt. [3].)

Impact of Ohio Rule 1.9 on the Kala decision: Rule 1.9 resolves a number of issues that had not been authoritatively settled by the pre-Rule cases decided before and after Kala. First, the Rule applies to both criminal as well as civil matters. See Ohio Rule 1.9 cmts. [1] & [2]. Under pre-Rule precedent, most (but not all) cases agreed that Kala applied in the criminal as well as civil context. E.g., State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Portage 1998) (assuming without discussion, as do virtually all of the court of appeals opinions so holding, that the Kala rule was applicable to criminal matters).

Second, Rule 1.9 confirms the affirmative result reached in a number of pre-Rule cases on the applicability of the Kala test both to moves from private practice to government lawyering (e.g., State v. Edighoffer, Nos. 96 CA 161, 96 CA 162, 1998 Ohio App. LEXIS 6191 (Mahoning Dec. 16, 1998)), and to moves from the public defender's office to the prosecutor's office (e.g., Wiles). Comment [1] expressly notes that "[c]urrent and former government lawyers must comply with this rule to the extent required by Rule 1.11." Ohio Rule 1.9 cmt. [1]. The "extent required" by former government lawyers is compliance with "all applicable laws and Rule 1.9(c)." Ohio Rule 1.11(a)(1). See further discussion of this issue at section 1.11:200. Ohio Rule 1.11(d)(1) (current government lawyers) tracks the Model Rule in requiring compliance with "Rules 1.7 and 1.9."

Another important question not resolved prior to adoption of the Ohio Rules was whether the Kala syllabus rule was limited in application to side-switching cases only, or whether it applies more broadly to other former-client conflict cases. [In one sense, a lawyer is "switching sides" whenever he or she sues, or otherwise shows up in an adversary position to, a former client. As used here, however, the term refers to a lawyer moving from one side to the other in the same case (or, more improbably, the same transaction).] While there are aspects of Kala that are peculiar to side-switching cases (e.g., the refusal to recognize the effectiveness of screening in "egregious" side-switching situations), it is reasonably clear from the language used by the Court in Kala that the rule there stated was intended to apply to all migratory-lawyer disqualification cases, not just to side-switching cases. There is no doubt that the facts of Kala presented a side-switching case, and the syllabus deals with a situation in which "an attorney has left a law firm and joined a firm representing the opposite party." But it is also clear that the Court thought its three-part test applicable in a broader category of disqualification settings as well. At one point in its opinion, it said just that: "We believe this test adequately covers many different scenarios and will give the courts of Ohio guidance on disqualification issues." 81 Ohio St.3d at 8, 688 N.E.2d at 264. At least one commentary reads the case this way. See 2 Restatement (Third) of the Law Governing Lawyers § 124 reporter's note to cmt. c, at 307 (2000) ("trial court has discretion to find that screening removes imputed disqualification in almost all instances, including those in which lawyer switches firms in same matter") (emphasis added).

Further underscoring such a reading is the fact that, of the opinions cited by Kala with approval in its exposition of the development of the test it adopts, some are not side-switching cases. E.g., LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983) (migrating lawyer, but not same case); Bd. of Comm'rs on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20 (May 30, 1989) (migrating lawyer; opinion covers both same and different (but substantially related) cases). See also Green v. Toledo Hosp., No. L-97-1457, 2000 Ohio App. LEXIS 3590, at *5 (Lucas Aug. 11, 2000) (noting that the Court in Kala established a test for "trial courts to employ in ruling on pretrial motions to disqualify counsel," and that the Kala test allows, "in all cases," a rebuttable presumption of shared confidences), aff'd in part, rev'd in part, and remanded, 94 Ohio St.3d 480, 764 N.E.2d 979 (2002) (migrating nonlawyer case). In any event, Ohio Rule 1.9 is controlling with respect to personal disqualification flowing from lawyer/former-client conflicts generally, including but not limited to side-switching in the same matter. It must be noted, however, that the provisions dealing with imputation of a lawyer's personal conflict to his new firm in a same-case side switch (Rule 1.10(c)) are different from those dealing with imputation in all other instances in which a lawyer changes firms. (Rule 1.10(d).) These differences are explored in detail in section 1.10:300 infra.

A related issue is whether Kala is internally inconsistent. This is not merely an academic exercise, inasmuch as Ohio Rule 1.9 (and 1.10) purport to be an effort to restate or "codify" the Kala rule. Just what, then, is the Kala rule? The tension arises from the syllabus (issued at a time when the syllabus was "the" law of a non-per curiam Ohio Supreme Court decision) and the actual holding as it impacted on the parties. Thus, the Court states in the syllabus that the presumption of shared confidences of the former client by the side-switching lawyer with his or her new firm is rebuttable, but in its holding on the facts declares that there is nothing the new firm could have done to repair the damage, given the "egregious" side-switching facts. 81 Ohio St. at 14, 688 N.E.2d at 268. In other words, in this particular case, given the side-switching lawyer's negotiating for a job with the opposition without disclosing it to his client, for whom the lawyer was in the midst of an appeal, it would appear that the presumption was, in effect, irrebuttable, despite the new firm's extensive and timely screening mechanisms. Id. at 2-3, 688 N.E.2d at 260-61. (This issue, together with Ohio Rules 1.10(c) and (d), is addressed in detail in section 1.10:300.)

One requirement covered by Kala that is not treated by Rule 1.9 is the necessity of an evidentiary hearing in resolving the disqualification issue in all side-switching cases and perhaps in other former-client-conflict contexts as well. In all likelihood, the courts will continue to look to Kala on this issue. E.g., Fletcher v. Greater Cleveland Transit Auth., 2007 Ohio 5338, 2007 Ohio App. LEXIS 4698 (Cuyahoga) (reversing and remanding order of disqualification without hearing; claim of side-switching; hearing required under Kala).

Rule 1.9 and post-Kala precedent under the former OHCPR: To date, the only noteworthy discussion of the Kala imputation/disqualification rule in subsequent full Ohio Supreme Court decisions is the opinion in Green v. Toledo Hospital, 94 Ohio St.3d 480, 764 N.E.2d 979 (2002), involving side-switching nonattorneys. (Kala was also cited in Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426, in support of the proposition that maintenance of confidentiality is a fundamental principle in the attorney-client relationship, and in the dissent in Biddle v. Warren General Hospital, 86 Ohio St.3d 395, 412, 715 N.E.2d 518, 531 (1999), on the point that a lawyer's duty to preserve confidences survives termination of the attorney-client relationship.) In Green, the Kala test was altered a bit for side-switching nonlawyers; the result under the new test was no disqualification of the side-switching secretary's new law firm. Pursuant to the Green syllabus, "on a motion to disqualify a lawyer based on that lawyer's employment of a nonattorney once employed by the lawyer representing an opposing party, a court must use the following analysis:"

(1) Is there a substantial relationship between the matter at issue and the matter of the nonattorney employee's former firm's representation?

(2) Did the moving party present credible evidence that the nonattorney was exposed to confidential information in his or her former employment relating to the matter at issue?

(3) If such evidence was presented, did the challenged attorney rebut the resulting presumption of disclosure with evidence either that (a) the employee had no contact with or knowledge of the related matter or (b) the new law firm erected and followed adequate and timely screens to rebut the evidence presented in prong (2) so as to avoid disqualification?

Id. at 481, 764 N.E.2d at 980 (syllabus two). Thus, under the Green nonattorney rule, the second Kala step is reversed; there is no presumption of shared confidences and the movant for disqualification must present evidence of shared confidences. If that is done, then under the third step, the challenged attorney may rebut that evidence with contrary evidence or by evidence of screening. Since the Court concluded that any evidence that the secretary had confidential information at her former firm had been rebutted, it had no occasion to reach the lower courts' conclusion of adequate screening. The Green case is discussed in 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 14.11, at 14-54 through 14-55 n.3 (3d. ed. Supp. 2005-1); Karen E. Rubin, Court Approves Ethical Screens for Nonlegal Personnel, Ohio Law., Jan./Feb. 2003, at 8.

The Green rule for nonlaywers is not directly impacted by Ohio Rule 1.9, which is limited to lawyer conduct. But see Ohio Rule 1.10 cmt. [4], discussed in section 1.10:200.

One other Supreme Court opinion, albeit by a single justice, is worthy of note here. In In re Disqualification of Cirigliano, 105 Ohio St.3d 1223, 2004 Ohio 7352, 826 N.E.2d 287 (mem.), Chief Justice Moyer dealt with an affidavit of disqualification of a judge presiding over a criminal case. In defense, Judge Cirigliano raised a number of issues, including whether the appointment of a special prosecutor in the case was valid, given the absence of a hearing on that issue. The Chief Justice concluded that a hearing was unnecessary, inasmuch as the Summit County Prosecutor had himself asked for and agreed to the appointment of the special prosecutor. As Chief Justice Moyer pointedly noted, however, in language relevant to our issues,

[a] hearing is indeed required when an attorney for a party to a case does not want to be disqualified or when an attorney's law firm wishes to continue representation despite that attorney's conflict of interest [citing, inter alia, the Kala syllabus, and Wiles and Condon, both of which are discussed below].

. . . The hearing described in the cases listed above is designed . . . to give attorneys the opportunity to argue that they can still represent a client when an opposing party moves to disqualify or to allow an attorney's law firm to continue to represent a client even though that one attorney in the firm or office cannot do so.

Id. at ¶¶ 31-32. Justice Moyer's opinion not only endorses the hearing requirement where such issues are contested, but also gives no hint that the Kala rule is limited to side-switching cases only.

Numerous subsequent court of appeals decisions under the former OHCPR cited or discussed Kala. In addition to the six officially reported opinions, there are 37 or so references to Kala in electronically reported cases.

The six officially reported Ohio appellate opinions are Amos v. Cohen, 156 Ohio App.3d 492, 2004 Ohio 1265, 806 N.E.2d 1014 (Hamilton); State v. Condon, 152 Ohio App. 3d 629, 2003 Ohio 2335, 789 N.E.2d 696 (Hamilton); Winblad v. Deskins, 150 Ohio App.3d 527, 2002 Ohio 7092, 782 N.E.2d 160 (Cuyahoga), Lightbody v. Rust, 137 Ohio App.3d 658, 739 N.E.2d 840 (Cuyahoga 2000), State ex rel. Corn v. Russo, 133 Ohio App.3d 57, 726 N.E.2d 1052 (Cuyahoga 1999), and State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Portage 1998).

The Wiles case is instructive on the relationship between Kala and new Rules 1.9 and 1.11. Citing Kala, the principal opinion in Wiles (one judge concurred separately and the third concurred in judgment only) held that in a situation in which the defendant's former attorney in the same case (while on direct appeal to the Ohio Supreme Court) "switched sides" from the public defender's office to the prosecutor's office, there was a rebuttable presumption that the lawyer shared information with the prosecutor's office relevant to defendant/appellant's claim for post-conviction relief, and that, pursuant to Kala, the trial court "must" hold a hearing on appellant's motion to disqualify the entire prosecutor's office. Therefore, the trial court's dismissal of appellant's motion for post-conviction relief without such a hearing was reversed and remanded. (Note again that the Kala mandatory hearing requirement is not addressed in Rule 1.9.) The court assumed, without discussion, that Kala was applicable in the criminal context and to switches to a governmental position. In her separate concurrence, Judge Christley questioned whether Kala should be dispositive on the facts before the court: "Specifically, I am still not convinced that when a government attorney is involved, there is the same presumption [of shared confidences] that applies when there is a private attorney, as in Kala." 126 Ohio App.3d at 85, 709 N.E.2d at 907. As it turns out, Judge Christley's position has been vindicated; disqualification is now limited to the particular government lawyer involved in the prior representation. Despite the absence of imputation, screening is nevertheless advised as "prudent" practice. See Ohio Rule 1.11(d)(1) & (2)(i) & cmt. [2]. (State v. Condon is also consistent with Judge Christley's position.)

In our attempt to synthesize Kala and its officially and electronically reported progeny with Rule 1.9, the following ground rules emerge:

  • Kala by its terms applies to all civil cases involving a side-switching lawyer, see, e.g., Bailey v. Republic Engineered Steels, Inc., No. 2001 CA 00147, 2001 WL 1913832 (Ohio App. Stark Nov. 5, 2001). See also Ussury v. St. Joseph Hospital, 43 Ohio App.3d 48, 539 N.E.2d 700 (Cuyahoga 1988), a civil pre-Kala side-switching disqualification case, and Geauga County Bar Ass'n v. Psenicka, 62 Ohio St.3d 35, 577 N.E.2d 1074 (1991), a disciplinary action in which violation of former OH DR 4-101(B)(2) & (3) and 5-105(A) was premised upon side-switching in a divorce action.

    Ohio Rule 1.9(a) now controls in this situation.

  • Kala has also been applied in side-switching criminal cases, in which the lawyer moved from the defense to the prosecution. See State v. Britton, No. 9-99-81, 2000 Ohio App. LEXIS 2521 (Marion June 14, 2000)); State v. Wiles, 126 Ohio App.3d 71, 709 N.E.2d 898 (Portage 1998). These two cases further stand for the proposition that Kala applies to lawyers migrating to a government legal position from private practice (Britton) or from the public defender's office (Wiles). A quartet of criminal cases decided the same day by the Third District Court of Appeals is in accord.  State v. Schramm, No. 13-01-018, 2001 Ohio App. LEXIS 5120 (Seneca Nov. 15, 2001); State v. Frederick, No. 13-01-16, 2001 Ohio App. LEXIS 5118 (Seneca Nov. 15, 2001); State v. Hoschar, No. 13-01-15, 2001 Ohio App. LEXIS 5119 (Seneca Nov. 15, 2001); State v. Adams, No. 13-01-13, 2001 Ohio App. LEXIS 5116 (Seneca Nov. 15, 2001) (Kala applied to move from public defender's office to prosecutor's office). Migration the other way -- from government to private practice -- is also covered.  Randal S.D. v. Tammy M.R., 2004 Ohio 6469, 2004 Ohio App. LEXIS 5904, (Huron).  (While a ruling granting a motion to disqualify in a civil case is a final appealable order, an order disqualifying defense counsel in a criminal case is not.  State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); State v. Whaley, 2006 Ohio 490, 2006 Ohio App. LEXIS 404 (Trumbull).)

    Under Ohio Rule 1.9 cmt. [1], current-government-lawyer conflicts are governed by Rule 1.11(d), in conjunction with the provisions of Rule 1.9 (and 1.7).

  • The Kala substantial-relationship test has been held to control as well in those cases in which a migrating lawyer or his or her new firm opposes a former client in a case different than that involved in the prior representation. See State v. Edighoffer, Nos. 96 CA 161, 96 CA 162, 1998 Ohio App. LEXIS 6191 (Mahoning Dec. 16, 1998) (prosecutor in present child-abuse criminal case had represented defendant in DUI case four years prior; Kala applied, no substantial relationship found; denial of disqualification affirmed). Pre-Kala, see Margiotta v. McClaren (In re McClaren), 115 B.R. 922 (N.D. Ohio 1990) (imputed disqualification of merged firm avoided by effective screening of lawyer for, and files of, former client from firm lawyers representing client against former client in different matter where prior representation was, in part, substantially related to current representation); Bd. of Comm'rs on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20 (May 30, 1989) (analysis applicable to same or different (but substantially related) cases adverse to former client; opinion cited with approval in Kala). Cf. Randal S.O. v. Tammy M.R., 2004 Ohio 6469, Ohio App. LEXIS 5904 (Huron) (inadequate protective devices insulating lawyer at new firm in case substantially related and adverse to child-custody work lawyer performed while lawyer for Child Support Enforcement Agency; disqualification affirmed; this case is further discussed in section 1.11:200). See also LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983) (substantial relationship found; lawyer and new firm disqualified; case cited with approval by Kala).

    Ohio Rule 1.9(a) applies here as well.

  • Citing, inter alia, Kala, the court in Friedman v. Kalail, No. 20657, 2002 Ohio App. LEXIS 1509 (Summit Apr. 3, 2002), held that there was no substantial relationship between prior representation in estate-planning matters for present defendant by others in lawyer's former firm and the current matter to domesticate a default judgment, in which lawyer represented the plaintiff.

    This pattern (former client of lawyer's former firm) is now controlled by Rule 1.9(b).

  • The Green variation on the Kala test is applicable in cases involving side-switching nonattorneys, such as secretaries and (presumably) paralegals.  Green v. Toledo Hosp., 94 Ohio St.3d 480, 764 N.E.2d 979 (2002), discussed this section supra; see Latson v. Blanchard, No. 18867, 1998 Ohio App. LEXIS 4619 (Summit Sept. 20, 1998) (pre-Green case involving side-switching paralegal).

    As noted above, Ohio Rule 1.9 is inapplicable to the situation presented in Green (and Latson), but with respect to imputation, see Ohio Rule 1.10 cmt. [4] and section 1.10:200.

  • All of the other post-Kala decisions are those in which there was no migrating lawyer, but the lawyer or the lawyer's firm opposed a former client in a different but substantially related case. See Stokes v. Mills, 2006 Ohio 6233, 2006 Ohio App. LEXIS 6210 (Licking); Campbell v. Indep. Outlook, Inc., 2004 Ohio 6716, 2004 Ohio App. LEXIS 6248 (Franklin); Harsh v. Kwait, No. 76683, 2000 Ohio App. LEXIS 4636 (Cuyahoga Oct. 5, 2000); Brant v. Vitreo-Retinal Consultants, Inc., No. 1999- CA-00283, 2000 Ohio App. LEXIS 1494 (Stark Apr. 3, 2000); Majestic Steel Serv., Inc. v. DiSabato, No. 76540, 1999 Ohio App. LEXIS 4919 (Cuyahoga Oct. 21, 1999). See also the pre-Kala cases of Hollis v. Hollis, 124 Ohio App.3d 481, 706 N.E.2d 798 (Cuyahoga 1997); Phillips v. Haidet, 119 Ohio App.3d 322, 695 N.E.2d 292 (Logan 1997); Stevens v. Grandview Hosp. & Med. Ctr., No. 14042, 1993 Ohio App. LEXIS 5092 (Montgomery Oct. 20, 1993).

    This situation is now controlled by Ohio Rule 1.9(a) and/or 1.9(c). As previously noted, the 1.9(c) prohibition against use or revelation of information is not limited to subsequent substantially related matters -- there need be no subsequent "matter" or representation at all.

  • In Majestic, the Eighth District Court of Appeals affirmed the disqualification of defendant's lawyer and his firm in an employment-contract/noncompete dispute, where they had previously worked on similar matters for the present plaintiff against parties other than the present defendant. In rejecting the defendant's argument that the trial court had erred in not holding the evidentiary hearing that Kala says "must" be held on the motion to disqualify (81 Ohio St.3d at 1, 688 N.E.2d at 260), the court of appeals concluded as follows:

    Appellant argues that although Kala was clearly intended to apply to "side-switching" cases, and the three-part test announced therein is specific to such cases, the opinion represents a modification of the three-part test announced in Dana regarding consideration of a motion for disqualification and should be applied, by implication, to require a hearing on all motions to disqualify. We see no reason to adopt this reasoning. There is nothing in Kala to suggest that an evidentiary hearing is necessary on all motions to disqualify counsel.

    1999 Ohio App. LEXIS 4919, at *12. Accord, on the hearing point, Shawnee Assoc., L.P. v. Village of Shawnee Hills, 2008 Ohio 461, 2008 Ohio App. LEXIS 391(Delaware) (prior negotiation substantially related to present litigation; Kala read as requiring hearing only in side-switching cases); Stokes v. Mills, 2006 Ohio 6233, 2006 Ohio App. LEXIS 6210 (Licking) (substantially related cases); Luce v. Alcox, 2005 Ohio 3373, 2005 Ohio App. LEXIS 3116 (Franklin). Although not expressly addressing the hearing issue, the court in Brant cited Majestic in support of its conclusion that the Kala test "specifically applies to 'side-switching attorney' cases." 2000 Ohio App. LEXIS 1494, at *5.

    However, the in-chambers opinion by Chief Justice Moyer discussed earlier in this section can fairly be read the other way in terms of whether the Kala hearing requirement is limited to side-switching cases only or applies more broadly to other former-client conflict disqualification cases. See In re Disqualification of Cirigliano, 105 Ohio St.3d 1223, 2004 Ohio 7352, 826 N.E.2d 287. Citing the Kala syllabus, the Chief Justice stated:

    A hearing is indeed required when an attorney for a party to a case does not want to be disqualified or when an attorney's law firm wishes to continue representation despite the attorney's conflict of interest.

    Id. at 31. While not a definitive pronouncement by the full Court on the issue, this language supports the view that the Kala hearing requirement extends beyond the same-case side-switching context. Accord State v. Condon, 152 Ohio App.3d 629, 2003 Ohio 2335, 789 N.E.2d 696 (stating general rule requiring evidentiary hearing in terms of "potential conflict of interest," id. at ¶ 47).

    As previously noted, Ohio Rule 1.9 does not deal with the question of the necessity of an evidentiary hearing, which the Kala Court held mandatory, at least in side-switching cases.

  • There is another aspect of the interplay between Kala and the Majestic line of cases that should be mentioned. Because the lawyer whose disqualification was sought in Majestic had himself represented the former client, the court held that there was an irrebuttable presumption that the lawyer had obtained from the former client confidential information he could make use of in his representation in the related current case against the former client.  1999 Ohio App. LEXIS 4919, at *7 (relying on Stevens v. Grandview Hosp. & Med. Ctr., No. 14042, 1993 Ohio App. LEXIS 5092 (Montgomery Oct. 20, 1993), and language from City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1976), aff'd, 573 F.2d 1310 (6th Cir. 1977) (table)). Accord Shawnee Assoc., L.P. v. Village of Shawnee Hills, 2008 Ohio App. LEXIS 391, at paras. 30-31; Indep. Outlook, 2004 Ohio App. LEXIS 6248, at paras. 14-15. At first blush, this seems inconsistent with the Kala rule that the presumption of shared confidences at the former firm (in Majestic the "former" firm was the same firm) is rebuttable, but the two cases are reconcilable. When the lawyer is the lead lawyer (or actively involved) in the prior matter (as in both Kala and Majestic), it is a given that he or she had access to confidential information. The Kala Court held as much when, in considering the "rebuttable" shared-confidences-with-his-prior-firm presumption, said merely that the lawyer "possessed client confidences, as he was the lead attorney on Kala's lawsuit." 81 Ohio St.3d at 13, 688 N.E.2d at 268. Thus, where the lawyer is suing a former client, whether in a side-switching or otherwise substantially related matter, and was the principal or a significant lawyer for the former client in the prior matter, his or her knowledge of the former client's confidences is, in effect, irrebuttable -- practically speaking, such a lawyer will be unable to make the showing necessary to rebut the presumption.

    Once again, 1.9(a) is now controlling and reaches the same result without resort to presumptions.

  • Finally, if the situation involves a matter in which the lawyer had participated personally and substantially while a public officer or employee, Ohio Rule 1.11(a)(2) prohibits the lawyer from accepting employment on that matter in private practice, unless the appropriate government agency gives its informed consent, confirmed in writing. See section 1.11:200.

1.9:210 "Substantial Relationship" Test

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.100 (1996).

Even if a lawyer does not switch sides, he must still decline representation or withdraw, absent the informed consent, confirmed in writing, to the representation by the lawyer's former client, where the interests of the former and current clients are materially adverse (see section 1.9:220) and the matters involved are "substantially related." Ohio Rule 1.9(a) & (b). See, under the former OHCPR, Shawnee Assoc., L.P. v. Village of Shawnee Hills, 2008 Ohio 461, 2008 Ohio App. LEXIS 391 (Delaware) ("to have a substantial relationship, there must be a commonality of issues between the prior and present representations, and the factual contexts of the two representations must be similar or related," id. at para. 21; substantial relationship found where plantiff's lawyer, in suit seeking right to use village sanitary sewer system, had previously represented village in negotiations with Columbus and Dublin regarding sanitary sewer service for village); Bd. of Comm'rs on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20 (May 30, 1989) (syllabus). Compare Campbell v. Indep. Outlook, Inc., 2004 Ohio 6716, 2004 Ohio App. LEXIS 6248 (Franklin) (suit on buyers' promissory note and guaranty, given as consideration for sale of partnership business; plaintiff, one of selling partners, moved to disqualify buyers' lawyer, who had represented selling partners in deal; court held substantial relationship existed between note/guaranty now at issue and sale agreement that buyers' lawyer had reviewed on behalf of sellers), and Brant v. Vitreo-Retinal Consultants, Inc., No. 1999 CA00283, 2000 Ohio App. LEXIS 1494, at *11 (Stark Apr. 3, 2000) (law firm, representing plaintiff in present action attacking noncompete agreement, had previously drafted another noncompete agreement for present defendants; substantial relationship found, since present case involved "essentially the same noncompete clause [law firm] drafted for appellees which [law firm] now seeks to find invalid on behalf of appellant"; disqualification affirmed), with Hollis v. Hollis, 124 Ohio App.3d 481, 706 N.E.2d 798 (Cuyahoga 1997) (no substantial relationship between present divorce action, in which lawyer represented husband, and prior workers' compensation matter, in which same lawyer had represented wife three years before marriage; disqualification reversed).

Although the substantial-relationship test is an integral part of the syllabus rule set down by the Supreme Court in Kala, the Court had no need to elaborate on the parameters of the substantial-relationship test itself, inasmuch as the former and current "matters" were one and the same case. The Court made clear, however, that "[i]f there is no substantial relationship, then no ethical problem exists."  81 Ohio St.3d at 8, 688 N.E.2d at 264.

Extensive guidelines with respect to what constitutes a "substantially related" matter are provided in Ohio Rule 1.9 cmt. [3]. After referencing the definition of "substantially related matter" in Rule 1.0(n), quoted in section 1.9:103 supra, the comment goes on to provide examples; thus, a lawyer who had represented a shopping center client in securing environmental permits would not be able to represent neighbors of the center seeking to oppose rezoning of the property on the basis of environmental considerations. (Comparable examples from prior Ohio case law would be the Shawnee case, discussed above, and Stevens v. Grandview Hospital & Medical Center, No. 14042, 1993 Ohio App. LEXIS 5092 (Montgomery Oct. 20, 1993), where the court, noting that lawyer "must" have acquired confidential information in his role as trial defense counsel for hospital for 15 years in similar actions and lawyer's admission of knowledge of hospital's policies and procedures, id. at *18, disqualified plaintiff's lawyer in a medical-malpractice action against the hospital). But that same shopping-center lawyer would not be precluded from defending a tenant of the shopping center in resisting eviction for nonpayment of rent. The comment further advises that a lawyer's general knowledge of an organizational client's policies and practices will not ordinarily preclude representation, but knowledge of specific facts from the prior representation, if relevant to the subsequent matter, usually will. (E.g., Harsh v. Kwait, No. 76683, 2000 Ohio App. LEXIS 4636 (Cuyahoga Oct. 5, 2000) (law firm disqualified where it had previously drafted for corporation articles of incorporation containing an indemnification provision that law firm's present client sought to enforce against corporation).) Finally, a former client need not disclose the confidential information in order to demonstrate substantial risk; rather, an objective test is used:

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.

Ohio Rule 1.9 cmt. [3].

Clarification is in order here about a sentence appearing in Ohio Rule 1.9 cmt. [2] (verbatim from MR 1.9 cmt. [2]) that "a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client." This language seems at odds with the other provisions of Rule 1.9 and its comments (as well as with the Stevens case, noted above). The sentence posits the existence of adversity and, although not addressing the issue directly, could be read as encompassing matters that are substantially related as well. We are aware of no explanation of it elsewhere in the Rule, the comments, or the ABA Annotation to MR 1.9. One could argue that it is intended to reject the "playbook" theory, whereby, as a result of the prior representation, a lawyer's knowledge of the former client's internal thought processes and tactical approach to litigation is enough to disqualify. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 13.7 (3d ed. Supp. 2005-1) (criticizing the pure playbook approach to disqualification as "unwarranted"). Accord ABA Formal Op. 99-415 (Sept. 8, 1999) (opining that fact that in-house lawyer had gained "a general knowledge of the strategies, policies, or personnel of the former employer is not sufficient by itself" to disqualify the lawyer under MR 1.9(a). Id. at 8.). The ABA Opinion also states, in language bearing more than a passing resemblance to the sentence in Comment [2], that

[t]he fact that the lawyer had represented his former employer in similar types of matters . . . is not sufficient by itself to establish a substantial relationship between the current matter and matters in the legal department at the organization for purposes of Rule 1.9(a).

Id. (emphasis added). We think Opinion 99-415 provides a key to accommodating the sentence in Comment [2] to the rest of the Rule. Thus, the sentence can be read as stating a no-disqualification result on the facts as stated, without more. But if the fact of substantial relationship is added, the rule is otherwise – i.e., "a lawyer . . . is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involve a position adverse to the prior client," unless the matters are substantially related as well as adverse. Only in this way, it seems to us, can the sentence be reconciled to the rest of Ohio Rule 1.9. Further support for this reading is found in Hazard and Hodes' suggestion that the Comment [2] sentence was designed to keep the playbook rationale from extending to "positional conflicts of interest in the former client context." 1 Hazard & Hodes § 13.7, at 13-21. Since positional conflicts involve a lawyer's being on different sides of an issue in "completely unrelated matter[s]," see section 1.7:270, this interpretation is congruent with our reading that the sentence speaks to situations other than those in which the matters are substantially related. And see Hazard & Hodes § 13.3, at 13-35 to 13-36 n.5 (positional conflict not "substantially related" in sense required by former-client conflict rules).

There are a number of Ohio federal cases, decided under the former OHCPR, that are instructive on the substantial-relationship issue, including Dana v. Blue Cross & Blue Shield Mut., 900 F.2d 882, 889 (6th Cir. 1990) (prior trademark-infringement case brought on behalf of present defendant's national affiliate by present RICO plaintiff's law firm "not even superficially related to the instant RICO case"); SST Castings, Inc. v. Amana Appliances, Inc., 250 F. Supp. 2d 863 (S.D. Ohio 2002) (movant for disqualification failed to satisfy second (substantial relationship) and third (acquisition of confidential information) prongs of Dana test (the first prong is the existence of an attorney-client relationship between movant and the lawyer subject to motion); "[t]he simple fact that a law firm has represented a client in garden-variety contract disputes, does not mean that when the client chooses representation by another firm, the client has veto power to block its former firm from representing an adverse party in yet another garden-variety contract dispute," id. at 868). (It should be further noted that where there is no migrating attorney as in Kala, numerous Ohio decisions follow the tri-partite Dana test in ruling on disqualification motions.  See, e.g., Sachs v. Phillips, 2006 Ohio 5100, 2006 Ohio App. LEXIS 5022 (Lucas) (disqualification reversed); Campbell v. Indep. Outlook, Inc., 2004 Ohio 6716, 2004 Ohio App. LEXIS 6248 (Franklin) (disqualification affirmed).)

Another informative federal case decided under the OHCPR was Berger McGill, Inc. v. Capozolli (In re Berger McGill, Inc.), 242 B.R. 413 (S.D. Ohio 1999). In Berger McGill, the court held, in a close-corporation context, that the law firm employed by the bankruptcy trustee to represent the corporation in an adversary proceeding against a creditor of the corporation could not do so, because the same law firm had represented the creditor (then the debtor's controlling shareholder) with respect to alleged preferential transfers made by the debtor to the creditor, which transfers were at issue in the adversary proceeding. "Consequently, there is a clear connection between the subject matter of the former representation of [creditor by the law firm] and that of the Trustee's preference action that he seeks to employ [the law firm] to prosecute."  Id. at 423. Since during the former representation the creditor provided the law firm with confidential information that was substantially related to the Trustee's current action, the law firm was not permitted to represent the Trustee. Id.

So long as the substantial-relationship requirement is satisfied and the interests are adverse, there is nothing in Rule 1.9 that limits application of the Rule's prohibition to situations in which the former client is an opposing party in the current client's representation. See, e.g., under the former OHCPR. Ohio State Bar Ass'n Informal Op. 89-1 (Nov. 15, 1989) (legal-aid lawyer who spoke to A, ex-wife of B, about visitation problems with B cannot later represent B in divorce action against the current wife, C, if confidences gained in the earlier relationship with A might be used in subsequent proceeding to benefit B or to the detriment of A; prohibition against using the confidences obtained from A would result in the lawyer being inhibited in the exercise of independent professional judgment on behalf of B, in violation of former OH DR 5-105(A)). In Stark County Bar Ass'n v. Phillips, 45 Ohio St.3d 286, 544 N.E.2d 237 (1989), an attorney received a public reprimand for representing a nursing home against the estate of a former client in an action in which the nursing home alleged that the former client had misrepresented his assets and thereby secured a reduced rate for the nursing home's care. Such representation violated former OH DR 5-105(B), because the lawyer had had access to the former client's financial information that might be relevant in the dispute, but which he would be barred from using for his current client due to confidentiality concerns. The action underlying the disciplinary proceeding in Phillips was not directly against the former client, and in disqualifying the lawyer, the trial court had premised its ruling on the fact that the lawyer was representing interests adverse to his former client and could have obtained information from the former client detrimental to the estate in the lawyer's representation of the nursing home. And see State v. New, No. 93- L-160, 1994 Ohio App. LEXIS 5905 (Lake Dec. 23, 1994) (petition for post-conviction relief based on ineffective assistance of counsel because of conflict; lawyer's previous representation of criminal defendant's former wife on charges of shooting husband-defendant during marital dispute created potential for conflict in representing the husband-defendant in felonious-rape and sexual-penetration charges involving two minors, where the former client/ex-wife testified against defendant as to comments made by him during the marital relationship; trial court erred in not holding hearing to determine whether failure to cross-examine former wife was affected by lawyer's prior attorney/client relationship with this witness): "Without holding a hearing on this issue, we are unable to understand how the court was able to conclude that [the lawyer's] decision not to cross-examine [the witness] was merely a trial tactic and that his representation of appellant was unhindered by any conflicting representation." Id. at *5.

The United States Supreme Court recently dealt with a former-client conflict in the post-conviction relief context in Mickens v. Taylor, 535 U.S. 162 (2002). Mickens is discussed in section 1.7:320.

1.9:220 Material Adversity of Interest

Because the concern is one of conflict of interest, the ethical constraints imposed on lawyers with respect to former clients typically come into play only if the interests involved in the current and former representations are "materially adverse." Ohio Rule 1.9(a) & (b). The exception is found in Rule 1.9(c), pursuant to which protection of information relating to the former representation is the primary focus. As a result, there need be no subsequent representation (much less representation of adverse interests) for the 1.9(c) ban on use or revelation of such information to apply. See section 1.9:400.

The pre-Rule precedent in Ohio on material adversity was generally in accord with Rule 1.9. (Once again, Kala had no occasion to treat the "materially adverse" issue; such adversity was a given in the side-switching case presented.) See Bd. of Commr's on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20, at *1 (May 30, 1989) (syllabus) (lawyer prohibited from representing client against former client if, in addition to matters being substantially related, interests of former and current clients are "adverse in some material respect"). See Vinci v. Ceraolo, 79 Ohio App.3d 640, 647, 607 N.E.2d 1079, 1084 (Cuyahoga 1992) (current representation precluded if past and present representations are both "adverse" and "substantially related"). Compare State v. Dillon, 74 Ohio St.3d 166, 167, 657 N.E.2d 273, 275 (1995) (trial counsel did not represent "competing interests" in representing two defendants accused of similar crimes, where one defendant was in jail when crimes for which second defendant was charged were committed, and second defendant was not suspect in crimes for which first defendant was charged). See also City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F. Supp. 193, 207-08 (N.D. Ohio 1976) (where the two representations did not give rise to potentially differing interests between the parties, "the required adversity of representation necessary to support disqualification," based on alleged former-client conflict, was not present; federal law applied; court also looked to ABA Model Code provision), aff'd, 573 F.2d 1310 (6th Cir. 1977) (table).

Thus a present representation, whether or not involving a matter substantially related to a previous matter for a former client, is permitted where the clients' interests are not adverse. Compare Rosenblum v. Robbins, No. 15171, 1992 Ohio App. LEXIS 359 (Summit Jan. 29, 1992) (no showing that former representation of husband and wife in acquiring title to, and preparing escrow letter for, property that lawyer knew was to be placed in wife's trust was adverse to current representation, asserting invalidity of trust on behalf of husband in suit against trustee; disqualification order reversed; Cleveland v. CEI test applied), with Stevens v. Grandview Hosp. & Med. Ctr., No. 14042, 1993 Ohio App. LEXIS 5092 (Montgomery Oct. 20, 1993) (former representation, defending medical malpractice suits against hospital, was adverse to current representation, bringing malpractice suits against hospital; disqualification order affirmed; Cleveland v. CEI test applied). See also  In re Dayco Corp. Derivitive Securities Litigation, 102 F.R.D. 624 (S.D. Ohio 1984), which provides a cogent analysis of the adversity issue in the derivative-action context. In Dayco, plaintiffs were suing the corporation both individually and derivatively, and the corporation moved for disqualification of counsel for one of the plaintiffs because that lawyer had previously represented an employee against the corporation in a state wrongful-termination suit arising out of the same events giving rise to the federal suit. The court noted that the test requires that the former and current representations be both "adverse" and "substantially related."  Id. at 628. As the "real-party plaintiff" in the derivative action, the corporation argued that plaintiff's counsel was representing interests adverse to his prior representation of the employee in the wrongful-termination case. "Generally, the test of adversity is premised on whether or not the interests of the former and current clients are differing." Id. The court held that the interests represented in counsel's prior and present representations were not adverse, because it is recognized that one counsel can represent a plaintiff both individually and derivatively against a corporation and that, even though the corporation is technically the "real" party plaintiff in the derivative action, thereby creating a "theoretical conflict of interest,"  id. at 630, the true alignment of parties is normally otherwise. Quoting Judge Frankel's opinion in Heilbrunn v. Hanover Equities Corp., 259 F. Supp. 936, 939 (S.D.N.Y. 1966), the Dayco court noted that the "surface duality" of joining individual and derivative actions and thus being both "friend" and "enemy" to the corporation is in fact a "routine" matter in the courts and that antagonism between the derivative plaintiff and the corporation and its management is a "common phenomenon." 102 F.R.D. at 630. Since there was no adversity in plaintiff's counsel's having formerly represented the employee against the corporation in the wrongful-termination suit and there being no actual, as opposed to theoretical conflict, the court denied the motion to disqualify.

While the material-adversity requirement is uniformly stated, it is seldom discussed or analyzed. The term "materially adverse interests" is mentioned in Rule 1.9 cmt. [2], but it is neither defined nor discussed in the Rule or its comments. A "materially adverse interest" certainly includes an interest that is directly adverse (see ABA Formal Op. 99-415 (1999); the Restatement formulation depends upon whether the scope of the interests involved in the new representation overlaps that of the prior representation and (presumably) is potentially harmful to or inconsistent with the former client's interests. 2 Restatement (Third) of the Law Governing Lawyers §  132 cmt. e (2000) ("The scope of a client's interests is normally determined by the scope of the work that the lawyer undertook in the former representation." Id. at 382.). See also ABA, Annotated Model Rules of Professional Conduct 166 (6th ed. 2007) (commentary); Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law 359-60 (2005).

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

The appearance-of-impropriety standard has been abandoned by the Model Rules and criticized by the commentators (see section 1.7:230), but it played a key role in the Ohio Supreme Court's seminal opinion on former-client conflicts, Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998) (in side-switching disqualification case, Court referred to appearance of impropriety nine times). While numerous other cases have cautioned that the appearance of impropriety, standing alone, is insufficient basis for ordering disqualification, e.g., State v. Condon, 152 Ohio App.3d 629, 2003 Ohio 2335, 789 N.E.2d 696 (Hamilton); Kitts v. U.S. Health Corp., 97 Ohio App.3d 271, 646 N.E.2d 555 (Scioto 1994), Kala holds that if the appearance of impropriety is sufficiently strong, disqualification will be required. Other post-Kala cases have continued to use the appearance-of-impropriety concern in support of decisions to disqualify. E.g., Perin v. Spurney, 2005 Ohio 6811, 2006 Ohio App. LEXIS 6112 (Franklin) (expressly holding that disqualification can be grounded on appearance of impropriety, id. at para. 28), appeals not accepted for review, 109 Ohio St.3d 1457, 2006 Ohio 2226, 847 N.E.2d 6; Winblad v. Deskins, 150 Ohio App.3d 527, 2002 Ohio 7092, 782 N.E.2d 160 (Cuyahoga). The Ohio Rules contain no reference to the appearance-of-impropriety language contained in the former OHCPR (e.g., OH DR 9-101 (title); OH EC 5-6). Does its absence trump the significant reliance upon that formulation in Kala? Probably, but the answer is unclear and is further complicated by the Task Force's view that Rules 1.9 and 1.10 codify Kala.

1.9:300 Client of Lawyer's Former Firm

  • Primary Ohio References: Ohio Rule 1.9(b)
  • Background References: ABA Model Rule 1.9(b)
  • Commentary: ABA/BNA § 51:2007; ALI-LGL §§ 123-124, 132; Wolfram § 7.6

This section treats the situation in which the migratory lawyer did not represent the former client, but his former firm did. The applicable Ohio Rule is Rule 1.9(b). It provides that a migratory lawyer cannot knowingly represent a client at his or her new firm in the same or a substantially related matter if the interests of the former firm's client are materially adverse to the lawyer's current client and if the migratory lawyer has acquired material information about the former firm's client, which information is protected by Rules 1.6 and 1.9(c). Ohio Rule 1.9(b)(1) & (2). In at least one pre-Rule Ohio case, the former-client conflict issue came up in the context of a former client of the lawyer's former firm.  Friedman v. Kalail, 2002 Ohio 1501; 2002 Ohio App. LEXIS 1509 (Summit), found no substantial relationship between the present action to domesticate a foreign default judgment, in which lawyer A represented plaintiff, and a prior representation of the present defendant years before, primarily in estate planning matters, by other lawyers in the firm with which A was once associated.

Note that, unlike Ohio Rule 1.9(a), division (b) applies only if the lawyer "knowingly" represents a current client in a manner otherwise prohibited by the Rule. Presumably this different treatment flows from the difference in relationship each subdivision addresses. Division (a) deals with a former client who had been directly represented by the lawyer. We assume the lawyer knows or should know who the lawyer's former clients are and the subject matter of those representations. Division (b), in contrast, addresses the duty a lawyer owes to one the lawyer did not represent, but who was represented by the lawyer's former firm. Here the assumption that the lawyer knows or should know about the client and the subject matter of the representation is not justified. Rather than imposing a burden to uncover such information, the Rule instead is limited to situations where the lawyer has "knowledge" that the current representation presents a prohibited former-client conflict.

1.9:310 Removing Imputed Conflict of Migrating Lawyer

Under Ohio Rule 1.9(b), if a lawyer had no actual knowledge of protected information concerning the client represented by the lawyer's former firm, there is no primary disqualification of the lawyer, and thus there is nothing to impute to the lawyer's new firm. See Ohio Rule 1.9 cmt. [5]. Accord Kala, 81 Ohio St.3d at 9, 688 N.E.2d at 265. If, however, the lawyer does have such information and the other elements of substantial relationship and material adversity are present, then the disqualification, and any imputation flowing therefrom, can be removed by the former client's giving "informed consent, confirmed in writing." Ohio Rule 1.9(b). If such consent is not forthcoming, then the imputation of knowledge can be prevented, if at all, only if the lawyer is timely and effectively screened from the other lawyers in the new firm. See section 1.10:300. The Restatement's formulation on imputation and removal of imputation is set forth in 2 Restatement (Third) of the Law Governing Lawyers § §  123-124 (2000). (Restatement §  124(1) notes that if the affiliation between the personally prohibited lawyer and the affiliated lawyer(s) is terminated, there is no further restriction on the affiliated lawyer(s), provided that no material confidential information of the affected client has been communicated to the affiliated lawyer(s); see section 1.10:400.)

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

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

  • Primary Ohio References: Ohio Rule 1.9(c)
  • Background References: ABA Model Rule 1.9(c)
  • Commentary: ABA/BNA § 55:301; ALI-LGL § 132; Wolfram § 7.4

While former OH DR 4-101 spoke in terms of preservation of the confidences and secrets of "the client," former OH EC 4-6 noted that the obligation to preserve confidences and secrets continued after the representation had terminated. Whatever tension may have existed between the disciplinary rule and the ethical consideration, it is now clear, under both Ohio Rule 1.9(c) and the Supreme Court's opinion in Kala, 81 Ohio St.3d 1, 688 N.E.2d 258, that these protections extend to a former client as well as a current client. See sections 1.6:200 and 1.9:200. In addition to Kala, other pre-Rule case law is in accord. E.g., Lightbody v. Rust, 137 Ohio App.3d 658, 664, 739 N.E.2d 840, 844-45 (Cuyahoga 2000); see also Hamrick v. Union Township, 79 F. Supp.2d 871, 876 (S.D. Ohio 1999) (reading OH DR 4-101(B)(2) obligation as running to former clients). Moreover, Ohio Rule 1.9(c)(1) precludes (except where allowed or required under "these rules") either the use of "information relating to the representation" to the disadvantage of the former client (unless the information has become generally known), or revelation of "information relating to the representation." Former OH DR 4-101 was more narrowly drawn to protect "confidences and secrets" only. See Ohio Rule 1.6 cmt. [3]. The "generally known" exception to the "use" prohibition certainly includes information that has "become public knowledge." See ABA, Annotated Model Rules of Professional Conduct 168 (6th ed. 2007) (commentary) (1.9(c) prohibits use of "nonpublic" information). It may also include information readily accessible, see 1 Restatement (Third) of the Law Governing Lawyers § 59, cmt. d (2000). The issue is discussed in Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 Geo. J. L. Ethics 259, 309-10 (2003).

The limitations of Ohio Rule 1.9(c) on use or revelation of information relating to the former representation apply not only to the lawyer but also to the lawyer's "present or former firm" that formerly represented a client in a matter.  Phillips v. Haidet, 119 Ohio App.3d 322, 695 N.E.2d 292 (Logan 1997), provides an example decided under the Code of a matter in which the contested prior representation was by the lawyer's present firm. The Haidet court reversed the disqualification of plaintiff's lawyer in a defamation/right of privacy action because the prior representation of the defamation defendant by plaintiff's lawyer's firm, in prosecuting a "wholly discrete" personal injury claim, involved no commonality of issues or clear connection between the two matters. Note, however, that while the result under Rule 1.9(c) might be the same as that in Haidet, the analysis would be significantly different: Under 1.9(c), there is no substantial relationship test; indeed there need be no subsequent matter. All that is required to trigger the prohibition is use of information not generally known relating to the prior representation to the disadvantage of the former client or revelation of information relating to the representation.

Pursuant to a literal reading of former OH DR 4-101(B), under (B)(1) "revealing" a confidence or secret of the lawyer's client (or former client) was subject to client (or former client) consent under OH DR 4-101(C)(1), but "use" of such confidences or secrets was subject to client (or former client) waiver only if the use was for the advantage of the lawyer or a third person ((B)(3)); a "use" to the disadvantage of the client was nonconsentable ((B)(2)). There is case law, however, indicating that a (B)(2) disadvantageous "use" was consentable. See Spivey v. Bender, 77 Ohio App.3d 17, 20, 601 N.E.2d 56, 57 (Lucas 1991) (reversing disqualification of counsel for plaintiffs in wrongful death action against defendant, whom plaintiffs' counsel had previously represented in criminal proceedings arising out of accident giving rise to both suits, where present defendant had given knowing waiver after full disclosure; his formal waiver included acknowledgment that "use" of such information "may be contrary to my interests."). See also Charles W. Wolfram, Modern Legal Ethics § 6.7.6, at 305 & n.88 (1986). Wolfram persuasively argues that there is "no intelligible reason" for the literal-reading distinction "(reveal versus use)" to have been drawn by the drafters of the Code. He underscores his point by positing a case much like Spivey, and clearly supports the conclusion reached by the Spivey court — that, with full disclosure and consent of the client or former client, use of information to the disadvantage of the client or former client should be permitted. Id. at n.88 (emphasis in original).

This point is now of historical interest only -- under Ohio Rule 1.9(c)(1), informed consent by the former client will permit the use of information to the disadvantage of the former client so consenting. See Ohio Rule 1.9 cmt. [9]: "The provisions of this rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b)." It is at first glance curious that the general blessing under Rule 1.9 of waiver by the former client upon informed consent (which consent under (a) and (b) must be confirmed in writing) finds explicit expression in the Rule itself only in divisions (a) and (b), but not (c). The problem as to division (c)(1) "use" is solved by the language "except as these rules would permit . . . with respect to a client," which in turn picks up Rule 1.8(b); it expressly states that the prohibition against "use of information to the disadvantage of the client" may be waived by the client's giving "informed consent." Waiver of the division (c)(2) "revelation" prohibition is similarly covered by the provision for informed consent in Rule 1.6(a). See also 2 Restatement (Third) of the Law Governing Lawyers § 122 cmt. g(iv), at 275 (2000) (emphasis added): "The professional rules and court decisions indicate that informed consent will always suffice with respect to a former-client conflict of interest."). Finally, the remark about the Kala decision in the Ohio Code Comparison to Rule 1.9 is consistent with this reading: "[Kala] clarified that the DR 4-101(B) prohibition against using or revealing client confidences or secrets without consent applied to former clients [Rule 1.9(c)]." (Emphasis added; second bracketed material in original.)

The Board of Commissioners offered its opinion on the application of Rule 1.9(c) – in the context of representation by a public defender of a criminal defendant when a former client represented by the defender in an unrelated matter will be a witness in the criminal case – in Bd. of Comm’rs on Grievance and Discipline Op. 2008-4, 2008 Ohio Griev. Discip. LEXIS 4 (Aug. 15, 2008). The Board stated that

[s]uch representation is not prohibited under the Ohio Rules of Professional Conduct, as long as the assistant county public defender does not use or reveal information of the former client that is protected from disclosure under Rule 1.9(c).

Id. at *21. Although the Board does not discuss the informed consent issue in its opinion, presumably the analysis set forth above would apply: if the witness gives his or her informed consent to the use or revelation of information relating to the former representation otherwise “protected from disclosure under Rule 1.9(c),” then the 1.9(c) prohibition would not apply. (Nor would it apply to prevent “use” of such information if “the information has become generally known.” Rule 1.9(c)(1)).