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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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

District of Columbia Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.9
· Background References: ABA Model Rule 1.9, Other Jurisdictions
· Commentary:

1.9:101      Model Rule Comparison

DC Rule 1.9 as originally adopted was identical to MR 1.9(a)MR 1.9(b) and its associated Comments, regarding disqualification arising from a lawyer's association with a previous firm, were covered in DC Rule 1.10(b) and its associated Comments, reflecting the fact that this material was located in MR 1.10 until a 1989 amendment shifted it to MR 1.9 -- a rearrangement that was not copied in the DC Rules.  The DC Rules also omitted MR 1.9(c) and its associated Comment, regarding confidential information of a previous client.  The Jordan Committee explained this deletion by saying that all material on confidentiality was placed in DC Rule 1.6 and its Comments.

Comment [2] to DC Rule 1.9 followed Comment [2] to MR 1.9, but language was added stating that the rule is intended to incorporate federal case law defining the "substantial relationship" test. Comments [3] and [4] to DC Rule 1.9 followed Comments [12] and [13] to MR 1.9, but were modified to make clear that any issue of disqualification of a former government lawyer or the firm with which such a lawyer is associated is governed by Rule 1.11, not Rule 1.9.

The only changes in Model Rule 1.9(a) pursuant to recommendations of the ABA Ethics 2000 Commission were replacement of  the phrase "consents after consultation" with "gives informed consent," and the addition of a requirement that the consent be confirmed in writing. A change similar to the first of these, but substituting "gives informed consent" for "consents after consultation," was made in DC Rule 1.9 following the recommendation of the DC Rules Review Committee, but the Committee did not recommend that the consent be requird to be in writing.

A number of changes were made in the Comments to the Model Rule, but relatively few to the DC Rule.  A significant new Comment [3], discussing when two mattters are "substantially rela ted," and was subsequently copied in a new Comment [3] to the DC.

1.9:102      Model Code Comparison

Subsequent adverse representations were addressed under two Code provisions: DR 4-101 with its obligation to protect a former client's confidences and secrets from disclosure or use by a third party; and Canon 9's admonition to avoid the appearance of impropriety. See, e.g., Ethics Committee Opinions No. 164 (1986) and 175 (1986). The DC version of Rule 1.9 is generally intended to codify the standards utilized by the courts and the DC Bar Ethics Committee in applying DR 4-101 and Canon 9.

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

· Primary DC References: DC Rule 1.9
· Background References: ABA Model Rule 1.9(a), Other Jurisdictions
· Commentary: ABA/BNA § 51:201, ALI-LGL § 132, Wolfram § 7.4

The purpose of Rule 1.9 "is to assure the preservation of attorney-client confidences gained in the prior representation and to preserve the reasonable expectations of the former client that the attorney will not seek to benefit from the prior representation at the expense of the former client." DC Ethics Opinion 272 (1997).

DC Ethics Opinion 269 (1997) holds that where clients who are being jointly represented by the same lawyer become adverse, the lawyer can withdraw from representing one and continue representing the other only with the consent of the client whose representation is discontinued. The lawyer must address how the lawyer's confidentiality obligation to the to-be-discontinued client will be protected and how the representation of the continuing client will be affected by that confidentiality obligation. DC Ethics Opinion 248 (1994) suggests that the possession by a lawyer in these circumstances of confidences of both clients could preclude the lawyer from continuing as attorney for only one, citing Rules 1.7(b)(2) and (4). See also DC Ethics Opinion 232 n. 8 (1992).

A lawyer who performs services for both buyer and seller in a real estate transaction and does not make clear that the representation is of only one party cannot later represent one of the parties in a dispute with the other relating to the sale. DC Ethics Opinion 247 (1994).

DC Ethics Opinion 240 (1993) addresses the applicability of Rule 1.9 to representations by lawyers in the DC Corporation Counsel's Office in Social Security Act Title IV-D child support proceedings where custody shifts from one parent to another. An attorney who prepared memoranda in support of a law firm's fee claim against a client cannot later represent the client against the firm in connection with the claim. DC Ethics Opinion 239 (1993).

DC Ethics Opinion 175 (1986) held that, in a matter adverse to a former client and not substantially related to the matter on which the former client was represented, a lawyer can use legal expertise and theories gained or developed during the former representation -- and indeed would be obligated to do so if necessary to providing adequate representation to the new client -- so long as confidences and secrets of the former client are preserved. See also DC Ethics Opinion 217 (1991), holding that general knowledge as to the terms on which disputes before a tribunal tend to be resolved, as distinguished from the particular terms on which a prior client's dispute was resolved, cannot be such a confidence or secret.

DC Ethics Opinion 337 (2007) addressed an inquiry from a lawyer who had been asked to provide expert testimony on behalf of a plaintiff.  The defendant’s lawyer objected because the expert had formerly been employed by a law firm that had performed work for the defendant.  The Opinion held that a lawyer who serves as an expert witness for a party typically would not have an attorney-client relationship with the party, and thus Rule 1.9 would not be triggered.  It emphasized, however, that the law firm hiring the expert should take steps to avoid any misunderstanding on the part of the client about whether the client and the expert have an attorney-client relationship.  The Opinion also cautioned that Rule 1.7(b)(4) may impose limitations upon the lawyer and the lawyer’s law firm as a result of the lawyer’s serving as an expert witness.

United States v. Childress, 731 F. Supp. 547 (DDC 1990), found that there was a sufficient potential for conflict between an alleged co-conspirator that a lawyer had represented at the Public Defender Service and a criminal defendant for whom the lawyer was now entering an appearance to require the lawyer's disqualification.

Other decisions finding a violation of Rule 1.9 are Berkeley v. Home Insurance Co., 68 F.3d 1409, 1416-17 (DC Cir. 1995); United States v. Davis, 780 F Supp. 21 (DDC 1991).

For the pertinent DC authorities regarding consent, see 1.7:240, above.

Whether Client is Current or Former Client; "Hot Potato" Question

Whether a client is a current or a former client is a question of fact. In a "continuing relationship punctuated by periods of inactivity," a client may have a reasonable belief that a lawyer-client relationship exists. The lawyer would be well advised to clarify the situation through a close-out letter, or include a termination clause in the retention letter. DC Ethics Opinion 272 (1997).

Riggs National Bank v. Calumet-Gussin, 1992 U.S. Dist. LEXIS 16475 (DDC 1992), holds that a former client could be sued on an unrelated matter where the representation had ended because of nonpayment of fees. The representation was not current simply because one lawyer who did not know it had ended passed on some information to the former client.

DC Ethics Opinion 272 (1997) addresses the "hot potato" question -- when it is permissible to terminate a representation so as to convert a client from current to former status for purposes of conflicts analysis. It rejects authorities in other jurisdictions broadly barring such action, and holds that a lawyer may withdraw from the representation of a client in order to avoid a conflict if withdrawal is permissible under Rule 1.16 because there would be no "material adverse effect" on the client. The Opinion suggests, however, that the outcome might be different if the lawyer (or law firm) had a role in creating the conflict. "In general, we suggest that the more the potential conflict was caused by the actions of the attorney for the benefit of the attorney or a prospective or other client, the less justifiable will be the firm's effort to withdraw and to treat the conflict under the principles applying to former clients." In the particular case before it, the Legal Ethics Committee found the withdrawal permissible even though the client from whose representation the law firm withdrew had been asked for consent to the adverse representation and had refused. The Committee found it persuasive that the firm was not at the time doing anything for the client in question, and that the conflict arose not because of any action on the firm's part, but because the inactive client had brought suit against another longstanding client of the firm in an area in which the firm had regularly represented that client, but not the client that was suing.

1.9:210      "Substantial Relationship" Test

In Derrickson v. Derrickson, 541 A.2d 149 (DC 1988), the Court discussed the circumstances in which disqualification of a lawyer is required by reason of a conflict with a former client. Because disqualification arises in circumstances where a lawyer potentially should have declined representation, the standards for disqualification apply to consideration of prospective clients. The Court stated that "'[w]here any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation, the latter will be prohibited.'" Id. at 151 (quoting Brown v. District of Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 42 (DC 1984)). The Court established a two-prong test to determine whether a lawyer should be disqualified because of a prior representation: (1) whether an attorney-client relationship formerly existed; and (2) whether the current litigation is substantially related to the prior representation. See id. If the party seeking disqualification can make these two showings, he establishes an irrebuttable presumption that the lawyer transmitted relevant confidential information to the current client. Id. at 151-52.

DC Ethics Opinion 237 (1992), citing Brown [a decision discussed more fully under 1.11:200, below], states that the first step in applying the "substantial relationship" test is "an analysis of the facts and legal issues to determine, in the first instance, whether the factual contexts of the two matters overlap." If they do, "further analysis is required." Work on a person's employee benefit plan and work on a subsequent divorce in which the interest of the person's spouse in the plan has significant economic value are "substantially related." Once it is established that matters are substantially related, it is inappropriate to inquire into whether confidences were actually received in the first matter or will be used in the second. DC Ethics Opinion 227 (1992).

DC Ethics Opinion 175 n. 2 (1986), describes the Brown case as requiring, for matters to be substantially related, that "the facts, legal issues and parties be substantially the same." This does not accurately describe Brown, which held -- in line with the general federal "substantial relationship" case law that Comment [2] now explicitly states that DC Rule 1.9 incorporates -- that the appropriate inquiry is whether the factual context of the two matters overlap, and if so, whether the lawyer was in a position to obtain confidences of the former client that could be used adversely to the former client on behalf of the new client.

DC Ethics Opinion 158 (1985) held that the "substantial relationship" test would bar a lawyer who represented both spouses in family and financial matters and one spouse in a tax matter from representing the other spouse in a divorce, absent consent.

Sequential representation of, first, a child as court-appointed guardian ad litem, and then prospective adoptive parents of the child in an adoption proceeding comes within the "substantial relationship" test because "it is obvious that facts made known to the lawyer in the neglect proceeding would have some relevance to the subsequent adoption proceeding." DC Ethics Opinion 156 (1985).

For a "substantial relationship" to be found, an identity of some legal issues between the two matters is not enough; both the facts and the legal issues must be examined. DC Ethics Opinion 150 (1985).

DC Ethics Opinion 96 (1980), applying Code provisions, found that a lawyer formerly employed by a large corporation could not act as a consultant in establishing litigation support systems to be used against the former client. The "substantial relationship" test applied because it was likely the attorney's role as employee of the corporation gave the attorney information that could be drawn upon in the consulting work, including familiarity with the former client's record systems, retrieval capabilities and databases. An ethical violation was found even though the lawyer would not be acting as an attorney in the consulting work.

DC Ethics Opinions 71 and 78 (1979), and DC Ethics Opinion 187 n. 3 (1987), indicate that a general rulemaking is not a "matter" for purposes of the "substantial relationship" test. Opinions 71 and 78 permit a lawyer who represented in private practice a trade association that commented on an agency's rules to join the agency and work on drafting guidelines for enforcement of the rules, work on appeals of the rules by parties other than the lawyer's former clients, prepare advisory opinions about the rules, participate in a compliance program, and enforce the rules against former clients where any risk of having received useful confidences from those clients is remote.

DC Ethics Opinion 63 (undated) applies the "substantial relationship" test to a representation in which, in the course of representing a current client, a lawyer may have to cross-examine a former client who will be a witness in a proceeding.

The fact that two matters involve the same area of law and the same general facts is not enough to establish a "substantial relationship." Laker Airways, Ltd. v. Pan American World Airways, 103 FRD 22, 40 (DDC 1984).

1.9:220      Material Adversity of Interest

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

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

The DC Rules, like the Model Rules, abandon the Code's "appearance of impropriety" standard.

1.9:300   Client of Lawyer's Former Firm

· Primary DC References: DC Rule 1.10(b)
· Background References: ABA Model Rule 1.9(b), Other Jurisdictions
· Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 123, 124, 132, Wolfram § 7.6

1.9:310      Removing Imputed Conflict of Migratory Lawyer

As pointed out under 1.9:101 above, this subject, now dealt with by MR 1.9(b), was until 1989 addressed instead by substantially the same provision, but then designated as MR 1.10(b). The corresponding provision of the DC Rules remains designated as DC Rule 1.10(b). Authority under that Rule and its Code antecedents will be treated here.

DC Ethics Opinion 273 (1997), in the course of addressing a number of ethical issues relating to movement of lawyers between firms (see the fuller discussion of the Opinion under 1.4:200, above), discusses the applicability of DC Rule 1.10(b) to the law firm that a migrating lawyer joins. Pointing out that that provision applies a variation of the "former client" provision of Rule 1.9 to the new firm, the Opinion states:

The Rule applies a four-part conjunctive test for disqualification based on the newly arrived lawyer's former legal work: (1) the lawyer must have formerly represented the client; (2) the new matter must be the same as or substantially related to the prior representation; (3) the position of the prospective new client must be adverse to that of the former client; and (4) the lawyer must actually (not just imputedly) have learned information confidential to the former client which is material to the new representation. One notable feature of the Rule is that it leaves open the possibility that a lawyer, such as an associate who had only a peripheral involvement in a matter (as by preparing a research memorandum on a point of law), would not subject his new law firm to a disqualification under Rule 1.10(b) because that lawyer did not learn any client confidences in the course of the representation.

DC Ethics Opinion 312 (2002) addresses, in a fairly comprehensive way, the question of what information may properly be provided to check for conflicts when a lawyer changes firms. It points out that the test for determining whether a lawyer's prior contact with a client is disqualifying, and therefore imputed to the lawyer's associates, reaches less broadly for a lawyer changing firms than for one remaining with the same firm, since the test for the latter is "substantial relationship," under Rule 1.9, which presumes that the lawyer acquired disqualifying information in the former representation, while the test for the latter requires that the lawyer have actually acquired such information, per Rule 1.10(b). The Opinion also emphasizes that potentially disqualifying information may be either "confidences" or "secrets" of the former client, as those terms are defined by Rule 1.6(b). It goes on to point out, however, that as cmt [8] to Rule 1.6 explains, "secrets" do not include information that has become "generally known," and to observe that it is typically necessary to reveal only the most general information about a former representation in order to determine whether the representation may present a conflict. The Opinion then offers some "rough suggestions or guidelines," which are as follows:

[1] As a general rule, it is merely necessary to compare the client name and general subject matter of the representatiion information that will often be neither privileged nor a secret.
[2] Sometimes identifying a particular issue or subject matter will suffice, without a client name.
[3] If the subject matter but not the client name is sensitive, disclosure of only the name may be sufficient to establish that there is no conflict.
[4] If the identity of the client is the source of a potential problem it may be that providing only the names of persons or entities to whom the client is adverse will do the trick.
[5] At least as a first stage of the process, it may be possible to avoid revealing confidences or secrets by furnishing a list of names that includes both clients and opposing parties, without specifying which are which.

DC Ethics Opinion 164 (1986), applying DR 4-101(B) and DR 9-101 of the Code, held that a law firm was not disqualified from representing a client in a matter if one of its members was formerly in the opposing firm if the lawyer in question did not participate in the matter in his previous employment and did not in that capacity come into possession of any pertinent confidences or secrets.

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

See 1.11:200 below.

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

· Primary DC References: DC Rule 1.6
· 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

The DC Rules omit MR 1.9(c) and cover all matters regarding confidences in Rule 1.6.