Presumed Knowledge and Burden

Presumed Knowledge and Burden

Rule 1.9(b) reaches a moving lawyer only if she actually acquired information about the old firm's client that Rules 1.6 and 1.9(c) protect and that is material to the matter.¹ That condition creates a problem of proof. What a lawyer absorbed at a firm sits in her own memory, and the old firm's client, the party the rule protects, cannot look inside it. The moving-lawyer analysis answers with two presumptions about confidential information, and this section teaches the first. The analysis developed in judicial decisions on motions to disqualify law firms, and its best-known source is Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975), which is why it is sometimes called the Silver Chrysler analysis. The Model Rules and the Restatement now contain it, though a reader has to work through the rules and comments to find it.²

At the first step, the moving lawyer is presumed to have acquired the confidential information of every client of her former firm. The presumption is rebuttable, and she rebuts it client by client. She shows, usually through an affidavit, that she did no work for a given client or did not work on the particular matter, so that she could not have learned anything confidential about that client.³ If the showing succeeds, she escapes personal disqualification and may take a matter at the new firm that is materially adverse and substantially related to the old firm's representation of that client.⁴ The client-by-client structure matters because a firm serves many clients, and one lawyer's contact with them runs from none to extensive. A presumption that she knows everything about everyone, and can never show otherwise, would bar her from every matter adverse to every old-firm client. It would bring back the mobility problem that opened this chapter.

The presumption is easy to misread as imputation carried across the door, and it is not. Under Rule 1.10(a), while lawyers practice together, the knowledge of one is imputed to all, so confidential information held by one lawyer is regarded as accessible to every other. A departing lawyer, however, “sheds the ‘taint’ of imputed disability at the old firm’s door.” She takes with her only the knowledge she actually possessed, not the knowledge presumed by imputation.⁵ What remains is a factual question: what did this lawyer actually learn? One court explained the shift. Once an attorney departs, she no longer has presumptive access to the former firm's secrets, and the court need no longer rely on the fiction of imputed knowledge. It may instead assess dispassionately whether and to what extent the attorney, during her tenure with the former firm, was reasonably likely to have obtained confidential information material to the current lawsuit.⁶ The presumption supplies the starting point for that inquiry, and the lawyer's affidavit supplies the evidence that can move it.

The burden of establishing that she did not in fact acquire the information rests on the lawyer.⁷ Two features of the situation justify that allocation. She alone knows what she worked on and what she heard, so she can produce the proof by swearing to her own role. The former client, by contrast, could prove that its secrets were exposed only by revealing them, which would destroy the protection the proceeding exists to defend. The same reasoning protects a former client elsewhere in this area. A party seeking to disqualify an attorney who previously handled a substantially related matter for that party need not identify the confidential information shared, or show that any confidence was actually divulged, because requiring that showing would undermine the very confidentiality the rule is designed to protect.⁸

Two lawyers who leave the same firm can show the difference between professing ignorance and proving it.

Renata may in truth know nothing about Northgate, yet nothing in the record displaces the presumption, so the presumption controls. Teodoro gives the court facts about work and access, and those are the facts that bear on whether a lawyer could have learned something. How much such a declaration proves can also turn on how the old firm was organized, a point the next section takes up.

Jurisdictions differ on how strictly they treat the presumption. The Wyoming Supreme Court, applying its former-client rule in disciplinary actions and disqualification motions, followed the majority of courts and adopted the most prophylactic version. The presumption of disclosure is irrebuttable as to the individual attorney when the previous client's interests are adverse to a client the attorney now represents.⁹ Irrebuttability, the court reasoned, gives greater assurance that confidential information will be protected, avoids any appearance of impropriety, and spares the former client from disclosing the very information it seeks to protect in order to justify disqualification.¹⁰

The setting of that rule matters for paragraph (b). The Wyoming provision governs a lawyer who formally represented the client herself, the situation Rule 1.9(a) covers.¹¹ The Restatement takes a similarly firm view of the lawyer who handled the prior matter. When that matter was litigation, it conclusively presumes the lawyer obtained confidential information about the issues in the litigation.¹² A lawyer who personally advised the client heard its confidences firsthand, so an affidavit adds little: she cannot credibly swear she learned nothing from a client she represented. The paragraph (b) lawyer never represented the old firm's client, and her sworn statement that she did no work for it and had no access to its files is real evidence that nothing reached her. That contrast makes rebuttal the distinguishing feature of paragraph (b). Because local rules vary, the answer on a given problem depends on the local rule. Conflicts doctrine also tends to flex with setting; courts, for example, tolerate simultaneous representation more readily in a small, closely held corporation than in a large, publicly held one.¹³

If the lawyer cannot rebut the presumption for a client, the analysis moves to a second presumption: that she shares the confidential information with the other lawyers at her new firm.¹⁴ That presumption decides whether the new firm inherits her disqualification, and the section on the effect on the new firm takes it up.