Concept
The Migrating Lawyer Problem
Rule 1.9(b): Conflicts a lawyer brings from a former firm
Conflicts From a Former Firm
The Migrating Lawyer Problem
Lawyers change firms often, and a lawyer who joins a new firm may find it opposing a client of the firm just left. Model Rule 1.9(b) governs that situation. It bars a lawyer from knowingly representing a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, unless the former client gives informed consent, confirmed in writing.1 Stripped of its qualifiers, the rule asks whether the lawyer carried out of the old firm something that the old firm's client is entitled to keep from the other side.
Rule 1.9(a) is the companion rule, and the two are easy to blur. It bars a lawyer who formerly represented a client in a matter from later representing another person in the same or a substantially related matter when that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing.2 Paragraph (a) covers a client the lawyer personally represented. Paragraph (b) covers a client of the firm with which the lawyer was formerly associated.3 A lawyer who never personally represented the old firm's client has no personal relationship on which to hang the bar, so paragraph (b) hangs it on information. The lawyer must actually have obtained confidential information material to the matter.4
The sections that follow take the rule apart piece by piece: the former firm's client, the related matter, the adversity, and the protected information. They then turn to consent and to the effect on the new firm. The information element does the real work, and its origin explains how the whole rule is built.
While a lawyer practices inside a firm, Rule 1.10(a) imputes the knowledge of each lawyer to every other lawyer in the firm, so confidential information held by one lawyer is regarded as accessible to all.5 When the lawyer leaves, the lawyer sheds that imputed taint at the old firm's door and takes along only the knowledge the lawyer actually possessed.6 The court in Adams v. Aerojet-General Corp. made the same point. Once an attorney departs, the attorney no longer has presumptive access to the former firm's secrets, so the court need not rely on the fiction of imputed knowledge. It may instead assess whether, and to what extent, the attorney was reasonably likely to have obtained confidential information material to the current lawsuit.7 How a court makes that assessment, and who bears the burden, comes later.
Elena's position matches the authority quoted in the secondary source. A lawyer who, while with one firm, acquired no knowledge or information about a particular client of the firm, and who later joined another firm, is not disqualified from representing another client in the same or a related matter, even though the two clients' interests conflict. Neither is the second firm.8 Whether a different result follows for the new firm when the migrating lawyer is barred is a separate question, taken up in a later section. For now, the point is that the old firm's representation of a client does not by itself create a conflict for a lawyer who walks out the door knowing nothing about that client.
Two pressures pull in opposite directions here. Mobility pulls one way. If a lawyer's conflicts from the old firm disqualified every lawyer at the new firm, associates laid off in a downturn might struggle to find work. A firm that accepted one such lawyer might also have to withdraw from long-standing clients who had come to rely on it.9 Protecting the former client's confidences pulls the other way. The primary purpose of the former-client rules is to guard against adverse use of a past client's confidential information for the benefit of a current client, while loyalty to a former client grows more attenuated as time passes.10 Tying the bar to what the lawyer actually acquired addresses the real danger and leaves lawyers free to move.