Enforcement and Consequences

Enforcement and Consequences

Rule 1.9(a) forbids a lawyer who has formerly represented a client to represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing.¹ The text commands, but it does not say what happens to a lawyer who disobeys. That depends on who complains and where. A disciplinary authority can ask whether the lawyer broke a rule of conduct. A court hearing the underlying case can be asked to disqualify the lawyer. And the former client can sue for damages. All three proceedings start from the same elements (a former client, the same or a substantially related matter, material adversity, and no consent), but each asks its own question and gives its own remedy.

The first two proceedings enforce the rule itself, and the rule aims at the risk of harm to a former client, not at harm already done. The third, a damages action, runs through the law of legal malpractice. The next two subsections take them in that order.

Discipline and Disqualification

Rule 1.9(a) is phrased as a limit on what a lawyer may do, and its text asks for no injury to the former client. The lawyer "shall not thereafter represent another person" in the same or a substantially related matter if that person's interests are materially adverse to the former client's, unless the former client gives informed consent, confirmed in writing.² The violation is therefore complete when the lawyer takes the engagement without that consent. Whatever follows depends on which proceeding the complaint reaches.

Discipline needs no injury, because conflicts rules aim at the significant risk that a lawyer will compromise a duty owed to a client, not at the damage that risk may later cause.³ "No harm, no foul" is not a principle of legal ethics, and a lawyer may be disciplined for representing conflicting interests even though the client suffers nothing. A rule that waited for proof of harm would act only after the former client's confidence had already been spent. Lawyers who violate the rules answer to official entities constituted by their state's judiciary, and the names vary: an Attorney Regulatory Committee in Colorado, an Attorney Registration and Disciplinary Commission in Illinois, an Office of Disciplinary Counsel in Washington.⁴

In re Braun shows a sanction imposed on a lawyer who backed out. The lawyer had counseled both spouses in their marital difficulties and so held confidences from each. The husband later met with him, discussed the case, and asked to be represented. The lawyer deferred a decision, then agreed to represent the wife, and withdrew only after the husband protested. The husband complained to the bar, and the court held that the lawyer violated the rules of professional conduct and should be reprimanded. Its stated grounds were that the lawyer had obtained confidential information by counseling both spouses and could no longer represent either, and that it was improper to take the wife's case after discussing the marital problems with the husband.⁵ The withdrawal ended the representation without undoing the violation, which occurred when the lawyer accepted the wife's case.

A Florida disciplinary matter reached a heavier sanction on facts that add actual misuse. A lawyer represented a husband and wife in acquiring a business and then represented the husband in their divorce. The business was an asset of the marital estate, so the lawyer would have had to argue that the husband deserved a greater share of it. When the wife complained, the lawyer could not show that she had consented, and it was shown that he had used personal information to her detriment. The Florida Bar determined that he violated several rules and recommended suspension of his license.⁶ Braun's stated grounds included no proven use of what the lawyer learned, and the Florida record does include it. The two outcomes are different sanctions on different records, both enforcing the conflict.

A motion to disqualify asks the court hearing the underlying case to keep the lawyer out of it. Wyoming shows how protective the inquiry can be. Its court has held that the focus is not whether confidential information was disclosed but whether the matters are related in some substantial way, and it adopted a "factual context" approach: if the two matters have common facts, the lawyer is in a position to receive confidential information that could be used to the former client's detriment in the later proceeding. In applying Rule 1.9 to disciplinary actions and disqualification motions, the court followed the majority of courts and adopted the most prophylactic rule, under which the presumption that confidences were disclosed is irrebuttable as to the individual lawyer when the former client's interests are adverse to a client the lawyer now represents.⁷ The former client therefore does not have to expose the very information it wants to protect in order to win removal.

The conflict also does not stay with the one lawyer. Under the imputed disqualification rule of Rule 1.10(a), if one lawyer in a firm has a conflict, every lawyer in the firm has it. If any lawyer in the firm would be barred from a new representation because it is adverse to a former client in the same or a substantially related matter, no other lawyer in the firm may take it.⁸ The rule rests on a presumption that confidential information held by one lawyer is shared with every other lawyer in the firm, so the firm cannot cure the problem by handing the case to a colleague who never worked for the former client. How far imputation reaches belongs to the separate reading on imputed disqualification.

Two mistakes recur on this topic. One is to demand proof that the former client was hurt, which the rule does not require. The other is to treat a withdrawal as a cure. In Braun the lawyer withdrew when the husband protested, and the court still held that the rules had been violated and reprimanded him.

Civil Liability

Discipline and disqualification enforce Rule 1.9(a) by asking whether the rule was broken and whether the lawyer should leave a case, but neither puts anything back in the hands of a former client whose confidences were turned against it. That client wants compensation, and the question is what kind of lawsuit delivers it. In Bevan v. Fix the Wyoming Supreme Court held that a breach of the lawyer's duties of confidentiality and loyalty to a former client gives rise to potential civil liability, and that the claim is analyzed within the framework of a legal malpractice action.¹⁰

The court reached that holding by treating the professional rules as a map of the lawyer's fiduciary duties. It first established that Rules 1.6 and 1.9 accurately reflect the parameters of the fiduciary duties owed to former clients, and it then concluded that a breach of those standards gives rise to potential civil liability to the former client.¹¹ A duty enforceable only through a disciplinary proceeding or a disqualification motion would leave its beneficiary without a remedy of its own, and the damages action closes that gap.

Bevan also supplies a test for when a lawyer's new employment is inconsistent with the duty owed to a former client. The question is whether accepting the new retainer will require the lawyer, in forwarding the new client's interest, to do anything that will injuriously affect the former client in any matter in which the lawyer formerly represented it, and also whether the lawyer will be called on, in the new relation, to use against the former client any knowledge or information acquired in the former relationship.¹² Each half looks at how the new matter connects to the old one. A former client can therefore point to the engagement itself, to what it required the lawyer to do to the former client or to use against it, without proving that a particular secret leaked.

Once a breach is in view, the framework is the ordinary malpractice one. The standard of care is the same as for any other legal malpractice claim. The plaintiff must establish, generally through expert testimony, that the lawyer's conduct in fulfilling the fiduciary duties fell below "that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction."¹³ The court added a note on labels: because the duty is fiduciary, it might be more accurate to call the standard one of conduct rather than care, but the test remains essentially the same regardless of the label.¹⁴ A former client's case is therefore not finished when the elements of Rule 1.9(a) appear on paper. The plaintiff must also offer evidence that the lawyer's conduct fell short of what a careful lawyer would have done.

Not every appearance against a former client supports a damages claim. A former client who merely dislikes seeing its old lawyer on the other side has not described a breach.

The facts that produce liability look quite different.

The bakery's suit fails at the first step, because the engagement touches nothing the lawyer learned or built. The distributor clears that step, and the remaining task is proof of the standard of care.

One last passage in Bevan needs care. The court closed its discussion of the former client's claim by noting that Wyoming applies Rule 1.9 in disciplinary actions and disqualification motions with an irrebuttable presumption of disclosure as to the individual lawyer.¹⁵ The passage describes the presumption as the rule for those two proceedings. It does not say that the presumption excuses a damages plaintiff from showing that the lawyer's conduct fell below the standard of care.

The second step does most of the sorting, because it separates the lawyer who appears against a former client in an unrelated matter from the lawyer whose new engagement draws on the old file. The fourth step is easy to forget, since the civil claim asks for more than a showing that Rule 1.9(a) was violated.