Establishing a Former Client

Establishing a Former Client

Rule 1.9(a) protects only someone whom the lawyer “has formerly represented … in a matter,” so every successive-conflict problem starts with a prior question: is the person to be opposed a former client at all?¹ The plain case is easy. A client whose single transaction closed years ago, with no contact since, is a former client. The status gets hard at four edges: a relationship that faded without a clear ending, a relationship the lawyer cut short, two clients who shared one lawyer and then separated, and a person who consulted the lawyer and never hired her. The four subsections below take those edges in turn.

The label matters because it selects the rule. A lawyer may not represent one present client against another present client, even when the two matters are unrelated.² If the adverse party is a former client, the lawyer may go forward unless the matters are substantially related.³ Rule 1.9(a) itself reaches only materially adverse work in the same or a substantially related matter, and even that bar yields when the former client gives informed consent, confirmed in writing.⁴ The same lawsuit against the same person can therefore be forbidden when she is a current client and permitted when she is a former one, which makes the classification potentially dispositive in a conflicts dispute.⁵

Each side of a status dispute has a motive to shade the label. The lawyer who wants an adverse engagement calls the old relationship finished; the person to be opposed calls it continuing. The answer therefore comes from what actually passed between lawyer and client, and neither side’s description settles it. Students err in two directions. Some treat everyone who is not a client today as a former client, which skips the question whether a client relationship ever existed. Others treat a person whose matter plainly closed as a current client. The first subsection asks how a representation ends. The next three test the label under pressure: a lawyer’s attempt to manufacture it, a joint representation that breaks apart, and a consultation that never became a representation.

When a Representation Ends

A representation generally ends when the agreed-upon work is complete.⁶ Rule 1.9(a) does not say when a current client becomes a former one, so the answer comes from how relationships usually end and from what the client has reason to expect.⁷ When a lawyer is retained for a single, discrete matter and the matter concludes, the natural presumption is that the relationship has ended, and the lawyer can confirm it with a clear communication to the client.⁸ A closed home purchase or a signed will leaves the lawyer nothing further to do, so the client has no ground to think the lawyer still watches over its affairs.

The presumption weakens when the client hired the lawyer for more than one matter. A lawyer who has advised the same client on a variety of matters, or on several similar ones, over an extended period builds a relationship of trust, and the client may reasonably expect the lawyer to stay responsible for its affairs after a particular matter closes.⁹ The lawyer may then be held to continuing responsibilities unless she carefully communicates that the relationship has ended and, if the client indicates a belief that it continues, disavows that belief.¹⁰ The burden falls on the lawyer because she is the professional dealing with a layperson: to the extent of any reasonable confusion about whether the relationship continues, she is responsible for clarifying it.¹¹ The label also favors her, since “former” selects the more lenient rule, so a lawyer who wants an adverse engagement has a reason to call the old relationship finished while the client has little reason to foresee that silence will be read that way. One letter removes the uncertainty.

The two companies differ in one respect: what each could reasonably believe about the lawyer’s continuing role, and whether the lawyer ever said otherwise. Elapsed time and the absence of an open file did not separate them, because the bakery had no pending work for eighteen months and was still the more likely to be treated as a client. A lawyer who keeps a connection with a client, even while doing no legal work for her, may find that the stricter concurrent-conflict rules bar a representation adverse to that client.¹²

Two practical tools let a lawyer control the label. The engagement agreement records what the lawyer was retained to do, which gives “agreed-upon work” a definite meaning, and it is the first document to read when status is disputed.¹³ The second is a polite letter at the end of every representation explaining that the relationship has terminated, which a lawyer who wants to preserve her options for future clients should send each time.¹⁴ Some relationships end with a clean break, such as a letter saying “I’m no longer representing you,” and others simply peter out; when no clean break occurred, status becomes a question of fact.¹⁵ The letter does not end the analysis if the client keeps acting as though the relationship continues, because the lawyer must then disavow that belief as well.

The Hot-Potato Doctrine

Because a current client enjoys broader protection than a former one, a lawyer who wants to oppose her has a reason to reclassify her. A lawyer may not represent one present client against another, even in an unrelated matter; against a former client, she may go forward unless the matters are substantially related.¹⁷ That gap invites manipulation. Suppose a lawyer is partway through work for Client A when Client B offers a remunerative engagement against A in an unrelated matter. While A remains a current client, the concurrent-conflict rule closes the door no matter how unrelated the matters are. If A could be recast as a former client, the more favorable substantial-relationship test of Rule 1.9 would govern, and an unrelated matter passes it.¹⁸ The lawyer need only end the relationship, and a lawyer who does so to make room for the more attractive engagement is said to drop the client like a “hot potato.”¹⁹

Courts can be expected to reject the maneuver. An attempt to convert an existing client, whose legal services are not complete, into a former client almost certainly fails, because loyalty considerations drive the hot-potato doctrine, which, in Professor Charles Wolfram’s words, “sharply limits the ability of a lawyer to withdraw prematurely from a representation in order to take on the representation of an adversary of the now-former client.”²⁰ The loyalty at stake is old law. A passage quoted in Mickens v. Taylor says that a client who employs an attorney “has a right to presume, if the latter be silent on the point, that he has no engagements, which interfere, in any degree, with his exclusive devotion to the cause confided to him.”²¹ A lawyer who drops an unfinished client to serve that client’s adversary has taken on exactly the kind of interfering engagement the client presumed she did not have.

The doctrine’s logic follows from what each status protects. A client with work pending relies on the lawyer’s loyalty when she most needs it. If withdrawal changed her status, the protection would last only until a better offer arrived, and the stricter rule would bind only lawyers who had no profitable reason to ignore it. The doctrine removes the payoff by refusing to let a premature withdrawal alter the client’s status. The dropped client is treated as a current client, and the lawyer cannot defend the adverse engagement by pointing out that it is unrelated to the old work.

Two facts do the work in applying the doctrine. The representation was cut off prematurely, with the agreed work still undone, and the lawyer cut it off in order to accept the adverse engagement. A stem therefore rewards attention to why and when the relationship ended. A student who reads Rule 1.9(a) alone may reason that the lawyer withdrew, the client is now a former client, the new matter is unrelated, and the engagement is permitted. That chain skips the step that matters, which is whether the lawyer’s own withdrawal can legitimately produce former-client status at all.

The two lawyers look alike, since each ended a relationship and then accepted an adverse engagement, and the outcomes diverge on the order of events and the state of the work. The trucking company’s matter was unfinished and the ending followed the adverse offer. The restaurant group’s matter was complete and the adverse offer followed the ending. A relationship that ends in the ordinary course leaves the lawyer free to apply the more lenient former-client test, and a relationship the lawyer ends to chase an adversary’s fee does not.²²

The second and third steps carry the analysis, because they separate a lawyer whose relationship ended on its own terms from one who ended it for profit. An adverse offer that arrives before the withdrawal, joined to a withdrawal that leaves work undone, is difficult to explain any other way.

Joint Clients Who Part Ways

Former clients also arise in the middle of a matter. A joint client who separates from the representation becomes a former client, and Rule 1.9(a) then bars the lawyer from taking a materially adverse position against her in the same or a substantially related matter unless she gives informed consent, confirmed in writing.²⁴ The status question that dominated the last subsection rarely troubles us here, because the clients’ diverging interests cause the break and the lawyer’s search for a better engagement does not. The hard question is what the lawyer may do next, and the usual answer is very little. The joint matter is the one in which she worked for both clients, so continued work for one that is adverse to the other falls in the “same matter” category.

The reason a split so often pushes the lawyer out entirely lies in what joint representation asks of the clients. They hire one lawyer on the premise that nothing will be held back, so she learns each client’s facts and weak points. While their interests align, that pooled knowledge serves everyone. Once the interests diverge, it becomes ammunition, because whatever one client revealed could advance the other’s position. The promise of confidentiality a lawyer makes stays “as good as gold,” with only rare and narrow exceptions.²⁵ A lawyer who goes on for one client therefore faces two bad paths. She can use what the other revealed, which confidentiality forbids, or she can hold it back and shortchange the client she still serves.

In re Braun shows the result when a lawyer who has heard both sides takes one. The court reprimanded a lawyer who “counseled” both spouses about their marital problems and then agreed to represent the wife. By counseling both, he obtained confidential information and could no longer represent either, and it was also improper to agree to represent the wife after discussing the marital problems with the husband.²⁶ The ordinary result of a failed joint representation is the same: the lawyer withdraws from all of the clients.

The bar is not absolute, and two routes through it exist. The first is a continuation that is not materially adverse to the former client, so that the lawyer never has to oppose the person who left.²⁷ The second is consent. The consent that counts is the former client’s, not the continuing client’s, which matches the text of Rule 1.9(a).²⁸

The driver’s lawyer held the departing client’s confidences and had no consent. The partners’ lawyer held the same kind of confidences and had the former client’s informed consent, confirmed in writing, which is the one thing that lifts the bar. A stem about a failed joint representation usually asks whether the lawyer may keep the remaining client. The default answer is no, unless the continued work is not materially adverse to the former client or the former client consented.

Prospective Clients Compared

Rule 1.9(a) begins with a lawyer who “has formerly represented a client,” language that leaves out a person who consulted a lawyer and never hired her.³⁰ No representation ever began, so that person is not a former client, and the successive-conflicts rule does not govern what the lawyer may do next. The lawyer still owes her something. Rule 1.18 protects a prospective client, and the two rules are worth comparing because they ask different questions about the same raw material, which is what the lawyer heard in the first conversation.

The lawyer’s duty of loyalty attaches to a prospective client as well, but the conflict constraints are more limited, because the relationship is confined to the discrete purpose of considering a representation that was never undertaken.³¹ Only a genuine prospective client may invoke those protections, which means someone with a reasonable expectation that the lawyer might undertake the representation.³² Confidentiality is the concern underneath. The promise of confidentiality a lawyer offers is “as good as gold,” with only narrow exceptions,³³ and Rule 1.18 carries that concern into the consultation.

The two rules part ways on what the lawyer’s knowledge must look like before the bar applies. Under Rule 1.18(c), a lawyer is disqualified from representing another client adverse to the prospective client in the same or a substantially related matter only if she received confidential information that “could be significantly harmful” to the prospective client.³⁴ Rule 1.9(a), by its text, asks about relatedness and material adversity and does not ask what the lawyer actually learned.³⁵ Rule 1.18 therefore adds an element that Rule 1.9(a) lacks: the content of the information received.

That extra element gives the lawyer something to manage. Because an encounter with a prospective client may disqualify her from representing any other client, including an existing one, in the same or a substantially related matter, she has good reason to arrange the consultation so that it limits the information received.³⁶ She need not stop the person from sharing substance altogether, which would often make it impossible to judge whether to take the case, but she may control receipt of information that is significant and harmful.³⁷ She may also seek the prospective client’s advance consent that receiving information will not prevent her from representing another party in the matter.³⁸

The label on the relationship stayed the same in both scenes, since each person was a prospective client and Rule 1.9(a) was out of the picture for both. Only the inquiry into the information received separated the homeowner, whose disclosure was extensive and damaging, from the caller, whose disclosure was brief and thin.

Students err in two directions here. Some treat a consultation as though it had produced a former client, so that Rule 1.9(a) bars the adverse work with no look at what the lawyer heard. Others conclude that a person who never became a client is owed nothing, which overlooks the protection Rule 1.18 gives against significantly harmful information. A fixed order of questions avoids both mistakes.

The fourth step has no counterpart under Rule 1.9(a), whose text does not ask what the lawyer learned. It is also where the two scenes above came apart.