Applying the Rule to a Move

Applying the Rule to a Move

Rule 1.9(b) bars a lawyer from knowingly representing a person in the same or a substantially related matter in which the lawyer's former firm represented a client whose interests are materially adverse to that person, when the lawyer acquired protected information about that client that is material to the matter. The former client's informed consent, confirmed in writing, lifts the bar.¹ Each element does a separate job. The relationship between the matters and the adversity between the parties locate the risk. The lawyer's knowledge decides whether she personally carries it. Consent and screening decide whether a risk that exists can still be managed. A student who can sequence these steps can apply the rule to facts that resemble no example.

Run one lateral move through the sequence. White & Pinkman represented a local businessman, Fring, in negotiations to buy a commercial laundry. Fring gave the firm confidential information about his finances, including debts he owed to several banks, and corporate lawyers there handled the deal. Separately, an associate named Goodman defended Fring in personal-injury suits arising from slip-and-fall incidents at restaurants he owned. She had no part in the laundry negotiation, and she learned little about his business interests because they almost never mattered to the defense of those cases.² Goodman then joined Hamlin & McGill. Unknown to her, that firm represented the seller of the laundry in contentious negotiations against Fring. Fring was furious. He demanded that the firm stop acting for the seller and wrote that his lawyer had betrayed him.³

The first three steps go quickly. Fring was a client of White & Pinkman, so paragraph (b) reaches the laundry negotiation the firm handled for him, though Goodman never worked on it.⁴ Paragraph (a), which governs a lawyer's own former clients, also needs a look, because Goodman did personally defend Fring.⁵ It does not appear to apply: the confidences a defense lawyer gathers in a restaurant injury case would add little for a seller bargaining over an acquisition. Paragraph (b) is different. The negotiation is the matter in which the old firm represented Fring, and Hamlin & McGill opposes him in that same negotiation, so the matter element is met. A buyer and a seller sit on opposite sides of price and terms, so their interests are materially adverse.

The knowledge element therefore decides the case. White & Pinkman held information that would matter to the seller, since a party who knew Fring's bank debts could gauge how much pressure he could bear. Whether any of it reached Goodman is the open question. A moving lawyer is presumed to have acquired confidential information about her former firm's clients, but she can rebut the presumption client by client, usually with an affidavit showing that she did no work for the client or on the matter and so could not have learned anything confidential.⁶ The burden of making that showing rests on her.⁷ Goodman's showing is plausible: she had no part in the negotiation, and her work for Fring so seldom touched his business interests that she learned little.⁸ If a tribunal accepts it, she escapes personal disqualification and may work on a matter that is materially adverse and substantially related to the old firm's representation of Fring.⁹ With no personal bar, there is no conflict to impute to the lawyers at Hamlin & McGill.¹⁰

Her showing is plausible, not airtight. Learning little still leaves open that she learned something, and an affidavit saying only that she was not on the negotiating team does not answer the question. Because she served Fring in other matters, she must show that nothing those cases taught her about his finances is material to the negotiation. The old firm's structure affects how persuasive she can be. If White & Pinkman operated openly, with general access to client files and regular discussion of client matters, she is presumed to have acquired information about all its clients. If the firm was divided so that she saw only a limited number of files and talked only with the lawyers on those matters, it may be inferred that she knows the clients she actually served and not the others.¹¹ Fring is a client she actually served, so even a divided firm does not clear her automatically; her declaration must address what she actually learned.

A second associate shows that the test follows the information, not the lawyer's staffing.

Goodman served Fring, and Imani never worked on her firm's client, yet Imani is the lawyer who cannot escape the presumption. Exposure to the information that matters separates them. Goodman's contact with Fring's affairs came through injury defense, where his finances seldom arose; Imani sat in the room while the partners reviewed the debts.

Consent is the first route around a bar that applies. The consent that counts belongs to the former client, Fring in Goodman's case and Firm C's client in Imani's, because the confidences at stake are theirs. The seller's approval and the new firm's comfort change nothing. The former client's consent must be informed and confirmed in writing.¹² Fring, who has just written an angry letter demanding that the firm drop the seller, is an unpromising source, so the realistic paths for Hamlin & McGill are rebutting the presumption and, failing that, screening.

Screening is the second route, and it protects the new firm rather than the lawyer. A lawyer who cannot rebut the presumption is presumed to share the former client's confidences with her new colleagues. That second presumption can be rebutted only if the jurisdiction recognizes screening to block imputation in this setting and the firm establishes the screen in a timely manner; Rule 1.10(a)(2) states the Model Rules position.¹³ A screen instructs the newly hired lawyer not to discuss the former client's representation with lawyers at the new firm. Because the client to be protected is the old firm's client, the screen aims at that conversation, and extra locks on the new firm's own client files add nothing.¹⁴ In a state that refuses to let screening cure a lateral move, no screen helps. Elsewhere, timing matters: a firm whose new lawyer expects to rebut the presumption should still isolate her from her first day.

The same sequence disposes of a will challenge, where the instinct to disqualify everyone from the drafting firm overshoots the rule. Abbott, a partner, drafted a will for a client of the firm. Darby, another lawyer there, later leaves for a firm whose client wants to challenge the will. While Darby stayed, a conflict based on the firm's earlier representation was imputed to him, so he probably could not have represented a challenger.¹⁵ Leaving ends that imputation. Darby is now disqualified only if he actually acquired confidential information relating to the will, and he bears the burden of showing he did not.¹⁶ The early elements are easy: the will-maker is the old firm's client, and a challenge attacks the firm's own work. Knowledge decides the matter, as it did for Goodman. If Darby cannot make the showing, his new firm avoids imputation only through a timely screen in a jurisdiction that permits one.¹⁷