Former Client Consent

Former Client Consent

Rule 1.9(a) forbids the adverse engagement “unless the former client gives informed consent, confirmed in writing.”¹ That clause is the rule's only exit. A lawyer who has found a former client, a same or substantially related matter, and materially adverse interests cannot reach the engagement by promising to be careful, by arguing that no confidence will be misused, or by pointing to the new client's eagerness. The conflicts rules aim at the risk of harm, not at harm that has already happened, so a lawyer cannot cure the problem by predicting that no harm will follow, and a lawyer may face discipline for representing conflicting interests even when the client suffers none.² Only the former client's agreement removes the bar, and that agreement must meet two conditions: it must be informed, and it must be confirmed in writing.

The clause names no kind of successive conflict that consent cannot reach, and an MPRE-style answer explanation says so in terms: all successive-representation conflicts are waivable.³ That follows from whose interests the rule protects. The confidences the lawyer holds and the finished work the lawyer might attack belong to the former client, so the former client is the person entitled to accept the risk. Three questions follow, and each gets a subsection: what makes the former client's consent informed, what the writing requirement adds, and why only the former client's consent counts.

Informed Consent

Informed consent means the former client agreed with knowledge, and a bare yes does not qualify. The guidance on concurrent conflicts shows how the standard scales. Where a conflict arises solely because the lawyer would be adverse to an existing client in an unrelated matter, knowledge of the general nature and scope of the work being performed for each client normally suffices to enable the clients to decide whether to consent.⁴ A Rule 1.9(a) conflict never sits at that low end, because the rule applies only when the new matter is the same as, or substantially related to, the old one. It follows that the former client needs more than the bare news that someone is about to oppose it. The same guidance describes the lawyer's task as full disclosure of the “risks and advantages in proceeding with the representation,” which ordinarily should be presented in a face-to-face conversation.⁵

The rule asks for information and not only a signature because the lawyer holds the information. The former client cannot see what the lawyer remembers from the earlier file or how the new client could use it, and the lawyer, who wants the engagement, has a stake in hearing yes. A yes given without that knowledge is acquiescence, not a decision. The source calls it a “mistaken impression” that a client's blessing overcomes any conflict regardless of its actual effect on the quality of the lawyer's representation.⁶ A lawyer who proceeds on a thin consent has taken an engagement the rule forbids.

The point is old. An early decision, quoted in a judicial opinion, said that a client “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; that he has no interest, which may betray his judgment, or endanger his fidelity.”⁷ Silence therefore speaks: a client who hears nothing assumes there is nothing to hear, so a lawyer with an interfering engagement must say so. Rule 1.9(a) points the telling toward the former client, who must learn of the new engagement and what it risks before deciding.

Both lawyers wanted the same thing and faced the same bar, so the difference lies in what the former client knew when it answered. The distributor's owner learned only that an adverse engagement existed, and even a reply of “fine” would have rested on nothing. The lender's general counsel learned what the lawyer held, how it could be used, and that refusal was available. An exam stem that reports a former client's agreement invites the quick conclusion that consent exists. The better question is what the client was told. The writing requirement, taken up next, records consent without supplying the disclosure that makes it informed.⁸

Confirmed in Writing

The second condition concerns the record the consent leaves. Rule 1.9(a) requires that the former client's consent be “confirmed in writing,”¹⁰ and Rule 1.0(b) defines the phrase as a “writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”¹¹ The definition gives the lawyer two routes to compliance. The former client may supply the writing, such as a signed letter or a reply email, or the lawyer may send a message that records what was agreed. The second route reveals the structure of the requirement: the consent itself may be oral, and the lawyer must then memorialize it in a writing to the client.

The definition speaks of a writing sent “promptly,” and Comment 20 to Rule 1.7, which interprets the same defined phrase, explains what happens when the writing cannot be produced in the moment. If it is not feasible to obtain or transmit the writing when the client gives informed consent, the lawyer must obtain or transmit it “within a reasonable time thereafter.”¹² The allowance fits how consent is actually given, often in a phone call with the new client waiting, and a rule demanding a signed instrument before any conversation could take place would slow the very exchange that produces a real decision. The allowance also has a limit set by the writing's purpose, since a confirming message loses value as memories fade, and a message sent the same day fixes the terms while both people still remember them.

That purpose explains why the rule insists on a writing. Comment 20 says the writing exists to “impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.”¹³ Each purpose rests on its own mechanism. A former client who says yes in a casual phone conversation may not register that a lawyer who knows its confidences is about to work against it, and a message stating the arrangement and the client's agreement turns a passing word into a recorded decision. The dispute-avoidance purpose works differently. An oral consent leaves two memories of the conversation, held by a lawyer who wanted the new engagement and a former client who may later be unhappy with how it turned out, and those two people have opposite reasons to recall the scope of the agreement differently. A message sent soon after the call fixes which matter was covered and what risks were described, and it gives the former client a chance to correct a description that does not match what was said.

The compliant sequence is short. The lawyer explains the risks by phone, the former client agrees, and the lawyer promptly emails a message reciting that the client agreed to let the lawyer represent the other party despite those risks. The same call without the email shows what the writing contributes.

Only the confirming message was missing in that scene, and the bar stayed in place without it. The second condition was unmet when the lawyer began work, and an engagement resting on unconfirmed oral consent is one the rule forbids.

The writing does not do the work of disclosure. The comment is explicit that the requirement of a writing is no substitute for a full disclosure by the lawyer of the risks and advantages in proceeding with the representation, which ordinarily should be presented in a face-to-face conversation with the client.¹⁴ The two conditions in Rule 1.9(a) are therefore independent, and each can fail while the other is met. A lawyer's confirming message is defined as one that confirms an oral informed consent, so a message reciting an agreement the former client never made with knowledge confirms nothing. A former client who signs and returns a one-line form, with no explanation of what the lawyer knows or how the new client could use it, has produced a writing without making an informed choice, and the consent is ineffective.

Exam stems tend to supply one condition and tempt the student to assume the other. A stem reporting that the former client signed a consent form invites the conclusion that consent is confirmed in writing and therefore sufficient, so the question to ask is what the former client was told before signing. A stem reporting that the former client agreed orally after a full explanation invites the opposite shortcut, so the question to ask is whether the lawyer ever sent or obtained a writing, and how soon.

The writing requirement belongs to the Model Rule, and state texts do not all share it. The Model Rules are nothing more than suggestions that state courts may adopt, so each state's wording can differ.¹⁵ One state text, quoted in a judicial opinion, permits the adverse engagement “unless the former client consents after consultation,” which asks for consultation in place of informed consent and mentions no writing.¹⁶ Another, quoted in a different opinion, ends “unless the former client gives informed consent,” with no confirming-writing language.¹⁷ Neither is the Model Rule, and neither should be quoted as if it were. A lawyer in such a state still has every reason to record what the former client agreed to, since the reasons for a writing do not depend on how the rule is worded. An answer that names no jurisdiction should apply the Model Rule, which is the version the MPRE tests, and require informed consent confirmed in writing.¹⁸

Whose Consent Counts

Rule 1.9(a) lifts its bar only when “the former client gives informed consent,” so the former client is the only person the rule names.²⁰ A student may assume that the new client's agreement matters, or that both clients must agree, but the text supports neither reading. The confidences the lawyer holds from the earlier engagement and the finished work the lawyer might attack belong to the former client, and a person cannot give up an interest that belongs to someone else. A new client who says “I know the history and I don't mind” speaks only for the new client's own comfort, and that statement does nothing to relieve the risk the former client bears.

A bar-review hypothetical makes the point concrete. A general practitioner advised Husband on business and tax matters for several years and knew that Husband used an extremely aggressive tax-avoidance strategy built on a Cayman Islands partnership. The lawyer had warned him more than once that the structure was “just on this side of the fine line between lawful and unlawful.”²¹ The answer explanation for the question that follows rejects two tempting responses. One is that the conflict cannot be waived at all, which is wrong because all successive-representation conflicts are waivable. The other is that someone other than Husband must consent, which is wrong because it is the former client, Husband, who must give informed consent to the representation.²²

The former client's consent answers only the Rule 1.9(a) question, which is whether the lawyer may take the engagement. Rule 1.9(c) states a separate duty, one that survives termination of the attorney-client relationship, not to use confidential information to the former client's disadvantage.²³ A lawyer should resolve the first question and then ask the second on its own terms. The new client's position is a practical concern for the lawyer, but it is not a consent condition under this rule.

Some states add a restriction on former-client consent that the Model Rule does not contain. One state text, quoted in a judicial opinion, has the same structure as Rule 1.9(a) but permits consent “after consultation” and adds that “when the former client is a governmental entity, consent is not permitted.”²⁴ The quoted text does not explain itself, so it can be read only for what it does: in a state with that wording, a government former client cannot lift the bar however willing its officials are to sign. A student should treat the restriction as state variation, because the Model Rules are only suggestions until a state adopts them, and the MPRE tests the Model Rules.²⁵

An exam stem that reports a new client's enthusiastic consent invites the conclusion that the conflict has been cured, and the first two steps are how to resist it. The new client's consent can be fully informed and still leave the Rule 1.9(a) bar standing. The former client's consent, if informed and confirmed in writing, ends the bar.