Pennsylvania Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Pennsylvania Rule

• Primary Pennsylvania References: PA Rule 1.9
• Background References: ABA Model Rule 1.9, Other Jurisdictions
• Commentary:

1.9:101      Model Rule Comparison

Amendments to the Model Rules in 1989 reformulated MR 1.10(b) and moved it to MR 1.9(b). Pennsylvania's Rules were not amended in turn. PA-R 1.9 contains 1.9(a), which corresponds to MR 1.9(a), and 1.9(b), which corresponds to MR 1.9(c). PA-R 1.9(a) is substantially identical to MR 1.9(a). PA-R 1.9(b) prohibits a lawyer from using information relating to a representation to the disadvantage of the former client while MR 1.9(c) prohibits the revelation of information relating to a representation as well as the use of such information to the disadvantage of the client.

1.9:102      Model Code Comparison

There is no DR counterpart in the Code to PA-R 1.9(a) or (b). The subject matter of PA-R 1.9(a) has sometimes been addressed under Canon 9 of the Code, which provides that a lawyer "[s]hould [a]void [e]ven the [a]ppearance of [p]rofessional [i]mpropriety." In addition, EC 4-6 states that the "obligation of a lawyer to preserve the confidences and secrets of [the] client continues after the termination of ... employment." The provision for waiver by the former client provided by PA-R 1.9(a) is similar in effect to DR 5-105(C).

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

• Primary Pennsylvania References: PA 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

Conduct constituting a violation of PA-R 1.9 could provide the basis of an action for injunction and damages as well as disciplinary action if the conduct is found to violate common law principles of fiduciary duty Maritrans G.P., Inc. v. Pepper, Hamilton & Scheetz (1992).

Information gained in an initial interview of a potential client can create a disqualifying conflict of interest even though the interview did not result in a representation Phila. Eth. Op. 96-2 (1996).

Under the Code, a lawyer could be disqualified who, through a relationship with a party other than lawyer-client, gained confidential information material to a matter in which the lawyer subsequently represents interests adverse to that party American Dredging Co. v. City of Philadelphia (1978).

1.9:210      "Substantial Relationship" Test

The test is not whether the two representations involve similar or related facts, but rather whether information acquired by the attorney in the former representation is substantially related to the subject matter of the subsequent representation; if the attorney might have acquired such information, PA-R 1.9 would prevent the attorney from representing the subsequent client. Estate of Pew (Pa. Super. Ct. 1994).

1.9:220      Material Adversity of Interest

[The discussion of this topic has not yet been written.]

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

[The discussion of this topic has not yet been written.]

1.9:300   Client of Lawyer's Former Firm

• Primary Pennsylvania References: PA Rule 1.10(b)
• Background References: ABA Model Rule 1.9(b), Other Jurisdictions
• Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 203, 204, 214, Wolfram § 7.6

1.9:310      Removing Imputed Conflict of Migratory Lawyer

[The discussion of this topic has not yet been written.]

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

[The discussion of this topic has not yet been written.]

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

• Primary Pennsylvania References: PA Rule 1.9
• Background References: ABA Model Rule 1.9(c), Other Jurisdictions
• Commentary: ABA/BNA § 55:501-55:2001, ALI-LGL § 213, Wolfram §§ 6.7 and 7.4