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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Texas Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 1.09
Background References: ABA Model Rule 1.9, Other Jurisdictions

1.9:101      Model Rule Comparison

Texas Rule 1.09, "Conflict of Interest: Former Client," bears the same name as Model Rule 1.9. The Texas rule, however, is structured differently, contains certain provisions not addressed in Model Rule 1.9 itself, and varies from Model Rule 1.9 in other ways. The Texas rule explicitly includes a qualified prohibition on representing a person in a matter in which a person "questions the validity of the lawyer's services or work product for the former client[.]" Texas Rules Rule 1.09(a)(1). Both rules appear to generally agree that a lawyer who has formerly represented a client in a matter should not thereafter represent another person in a same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client— unless the former client consents after consultation. See Model Rules Rule 1.9(a); Texas Rules Rule 1.09(a). Such representation also may be permitted procedurally if the conflict has been waived (e.g., by delay in asserting the existence of a conflict) or some other justification exists. Both rules concern themselves with the protection of client confidences, though the phraseology of the rules and the precise parameters of the rules differ. Texas Rule 1.09 deals with imputed disqualification in paragraph (b); the Model Rules address this subject matter not so much in Model Rule 1.9 itself, but in Model Rule 1.10, the general rule on imputed disqualification.

Both rules address the situation in which a lawyer leaves a firm, but approach the issues presented from somewhat different perspectives. For instance, paragraph (b) of Model Rule 1.9 focuses on the situation confronting a lawyer who has left a firm, and who may wish to represent interests adverse to a person or entity that his former firm represented while he was associated with the firm. The key inquiry is whether that lawyer obtained confidential information while associated with the firm. Paragraph (c) of Texas Rule 1.09 focuses on the situation confronting lawyers remaining in a firm when a lawyer leaves. Under paragraph (c) of Texas Rule 1.09, "[w]hen the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1)"—the provision involving questioning the validity of the lawyer's services or work product for the former client—or if the representation or reasonable probability will involve a violation of Rule 1.05," the rule dealing with confidentiality of client information. Texas Rules Rule 1.09(c).

Further specific details and nuances are addressed below.

1.9:102      Model Code Comparison

Unlike Model Rule 1.9 and Texas Rule 1.09, the Model Code did not set forth a framework for analyzing potential conflicts of interest caused by representation of interests adverse to a former client. The Model Code did, of course, contain provisions regarding preservation of client confidences and secrets. See, for instance, the discussion at 1.6:102. Canon 9 of the Model Code also exhorted lawyers to "avoid even the appearance of impropriety." The substantial relationship test to some extent contained both in Model Rule 1.9 and Texas Rule 1.09 evolved out of judicial decision making. See generally Edward A. Carr and Allan Van Fleet, Professional Responsibility Law in Multijurisdictional Litigation: Across the Country and Across the Street, 36 S. Tex. L. Rev. 866 n.31 (1995).

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

Primary Texas References: TX Rule 1.09
Background References: ABA Model Rule 1.9(a), Other Jurisdictions
Commentary: ABA/BNA § 51:201, ALI-LGL § 213, Wolfram § 7.4

A lawyer is not forbidden by the Texas Rules from ever representing interests adverse to a former client. The disciplinary limitations on a lawyer's ability to represent interests adverse to a former client are set forth in Texas Rule 1.09. Paragraph (a) of that rule provides, in pertinent part that, without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:

•   in which such other person questions the validity of the lawyer's services or work product for the former client;

•   if the representation in reasonable probability will involve a violation of Rule 1.05, the rule generally requiring a lawyer to maintain the confidences of clients and former clients; or

•   if it is the same or a substantially related matter.

Texas Rules Rule 1.09. Compare In re Meador, 968 S.W.2d 346 (Tex. 1998) (considering confidential information received from non-client scenarios).

1.9:210      "Substantial Relationship" Test

In order to satisfy the "substantial relationship" test as a basis for disqualification of opposing counsel, the party seeking disqualification must prove that the facts of the previous representation are so related to the facts of the pending litigation that a genuine threat exists that confidences revealed to former counsel will be divulged to the present adversary. Metropolitan Life Ins. Co. v. Syntek Finance Corp., 881 S.W.2d 319 (Tex. 1994); see also National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996). Other former client conflict cases include NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398 (Tex. 1989), Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995) (per curiam), and Texaco v. Garcia, 891 S.W.2d 255 (Tex. 1995) (per curiam).

1.9:220      Material Adversity of Interest

A lawyer does not violate Texas Rule 1.09 unless, among other things, the representation is "adverse to the former client." Texas Rules Rule 1.09. In one recent case, for instance, the court observed that Texas Rule 1.09 can only be violated if the representation is actually adverse and hostile to the former client. A mere potential conflict does not suffice, in the view of this court, if there is no actual conflict. Arteaga v. Texas Dept. of Protective and Regulatory Services, 924 S.W.2d 756 (Tex. App.—Austin 1996, writ denied).

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

The former Texas Code of Professional Responsibility, abolished in January 1990, included the "appearance of impropriety" language contained in Cannon 9 of the ABA Model Code. When the ABA replaced the Model Code with the ABA Model Rules, the ABA intentionally dropped the Cannon 9 appearance of impropriety standard. See G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, 298-99 (2d ed. 1991). Similarly, when Texas replaced the Texas Code in January 1990 with the Texas Rules, Texas dropped the Cannon 9 appearance of impropriety formulation. See John F. Sutton, Jr. & Dean Newton, Proposed Texas Disciplinary Rules of Professional Conduct: Commonly Asked Questions, 52 Tex. B.J. 561, 562 (May 1989) (noting that the "vague" appearance of impropriety language "was eliminated from the ABA Model Rules" as well as the Texas Rules; further observing that the Texas Rules "eliminated this vague non-standard" because the appearance of impropriety standard's ambiguity "has been part of the problem with the existing Code of Professional Responsibility"). The phrase occasionally is found, however, in Texas case authority.

1.9:300   Client of Lawyer's Former Firm

Primary Texas References: TX Rule 1.09
Background References: ABA Model Rule 1.9(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 203, 204, 214, Wolfram § 7.6

Assume that corporation X wants to sue partnership Y. Further assume that the Alpha law firm formerly represented Y in a matter substantially related to the dispute between X and Y. Additionally assume that X approaches lawyer B, who formerly was associated with the Alpha law firm. Does the fact of lawyer B's former association with the Alpha law firm disqualify him or the firm he has recently joined from assuming the representation of X against Y?

Paragraph (b) of Texas Rule 1.09 provides that, "[e]xcept to the extent authorized by" the rule applying to government lawyers, "when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a)." Texas Rules Rule 1.09(b). Paragraph (a) by its terms applies only to a lawyer who "personally has formerly represented" the former client in question. Thus, it would be relevant to the analysis whether B personally has formerly represented Y. Paragraph (c) deals with the scenario in which a personally disqualified lawyer leaves a law firm, and the remaining lawyers seek to determine whether they can pursue a representation that the departed lawyer individually would be prevented from pursuing. Comment 7 to Texas Rule 1.09 provides in pertinent part, that, "[f]inally, should . . . lawyers cease to be members of the same firm as [a] . . lawyer" personally disqualified by paragraph (a) "without personally coming within its restrictions, they thereafter may undertake the representation against the lawyer's former client unless prevented from doing so by some other of these Rules." Texas Rules Rule 1.09 cmt. 7 (emphasis added).

Texas Ethics Opinion 501 is illustrative. In Texas Ethics Opinion 501, a woman consulted with attorney A of law firm ABC regarding a possible divorce, but did not actually hire attorney A to represent her when she later filed for divorce." The wife paid a $400 fee to attorney A for his services. Attorney C, although a partner at law firm ABC when attorney A consulted with the wife, did not personally obtain any confidential information regarding the wife while employed by law firm ABC. Attorney A and attorney C never discussed attorney A's consultation with the wife. Attorney C "subsequently withdrew from law firm ABC and formed a new law firm, law firm CDE, in which attorney A is not associated in any capacity. After attorney C formed law firm CDE and approximately 18 months after [the] wife consulted with attorney A, [the] wife's husband hired attorney C to represent him in his divorce from [the] wife."

The Ethics Committee framed the issue presented as follows: "Since attorney C was no longer in the same law firm as attorney A at the time that attorney C accepted the representation of [the] husband, and attorney C never personally represented or consulted with the wife, the primary issue is whether attorney C is now vicariously disqualified, or disqualified by imputation, from representing the husband because his former partner, attorney A consulted with [the] wife at the time that attorney A and attorney C were partners in law firm ABC." The Committee reasoned that "attorney A would be prohibited from representing [the] husband because any such representation would involve the same matter as previously discussed between attorney A and [the] wife, which is a violation of Rule 1.09(a)(3), and because Texas Disciplinary Rule 1.09(a)(2) proscribes a representation that in reasonable probability involves disclosure of confidential information contrary to Texas Disciplinary Rule 1.05."

The Committee concluded, however, that attorney C would not be disqualified under Texas Rule 1.09:

Attorney C is no longer associated with attorney A and law firm ABC, and attorney C does not personally possess any confidential information imparted by the wife to attorney A. Under the Statement of Facts, such representation of the husband by attorney C does not violate Texas Disciplinary Rule 1.09(c), and there appears to be no reasonable probability of a violation of Texas Disciplinary Rule 1.05 or a violation of any other Texas Disciplinary Rule. Attorney C may represent the husband in the divorce proceeding against the wife.

Texas Ethics Opinion 501 (Apr. 12, 1994).

1.9:310      Removing Imputed Conflict of Migratory Lawyer

See discussion at 1.9:300 and 1.10:101.

For some Texas cases addressing conflict issues that can be raised by migratory non-lawyers, see, for instance, In re American Home Products Corp., Nos. 97-0654 and 97-0655, 1998 WL 226729 (Tex. May 8, 1998), Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994), and Phoenix Founders v. Marshall, 887 S.W.2d 831 (Tex. 1994).

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

Texas Rules Rule 1.10, "Successive Government and Private Employment," addresses this topic in a fairly straightforward fashion. The following points from that rule are highlighted. First, a lawyer subject to the Texas Rules generally cannot represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives consent after consultation. Likewise, a former government employee who moves into private law practice cannot represent private interests adverse to a person or entity about whom the lawyer learned confidential governmental information while working for the government. However, other lawyers in the firm the former government lawyer joins may be permitted to pursue such representation in certain cases if the former government lawyer is screened from the matter and is apportioned no part of the fee from the representation. See Texas Rules Rule 1.10(a)-(d). For an illustrative case in which the court concluded that the former government lawyer in question had not participated substantially and personally, see Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990).

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

Primary Texas References: TX Rules 1.05 & 1.09
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

As discussed at 1.6:100-1.6:260, a lawyer has a general duty, subject to certain exceptions, to maintain the secrecy of confidential client information. Texas Rule 1.09, "Conflict of Interest: Former Client," applies this principle by providing that a lawyer acts improperly and in violation of Rule 1.09 if he undertakes a representation, without consent, that "in reasonable probability will involve a violation of Rule 1.05," the rule obligating Texas lawyers to maintain client confidences. See Texas Rules Rule 1.09(a)(2).

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