Concept
Duty That Survives Representation
Rule 1.9(c): Duty not to use or reveal a former client's information
Using and Revealing Former Client Information
Duty That Survives Representation
Rule 1.9(c) binds two kinds of lawyer: one who has formerly represented a client in a matter, and one whose present or former firm has done so.1 Neither may, "thereafter," engage in the conduct the paragraph goes on to list. The reference to a present or former firm keeps the duty from depending on where the lawyer works today, so it follows the lawyer from one firm to the next.
Paragraph (c) does not wait for a conflict. Paragraphs (a) and (b) decide whether a lawyer may take a new matter against a former client, and under paragraph (a) the test is whether the new matter is the same as, or substantially related to, the old one.2 Paragraph (c) asks a different question: whatever matter the lawyer is permitted to handle, what may the lawyer do with the information the earlier representation produced? The answer holds whether or not the matters are related, and even if the lawyer would not be representing anyone in using or revealing the information. A lawyer simply may not misappropriate a former client's confidential information and use it to that client's disadvantage, or disclose it without the former client's permission or an exception under the Rules.3 A lawyer can therefore clear every conflict screen and still violate paragraph (c) by what the lawyer does inside a proper engagement. The substantial-relationship question belongs to paragraph (a) and does not control here.
Paragraph (c) contains two separate prohibitions. Subparagraph (c)(1) forbids using information relating to the former representation to the former client's disadvantage, and it excepts information that has become generally known.4 Subparagraph (c)(2) forbids revealing information relating to the representation, and it mentions neither disadvantage nor general knowledge.5 Both give way to whatever the Rules would permit or require with respect to a client, which imports the exceptions to current-client confidentiality into the former-client setting. A lawyer can satisfy one prohibition and violate the other, so the later sections take them up one at a time.
A lawyer's loyalty to a former client fades with time. Some of it survives, since the lawyer may not undermine the very work performed in the earlier representation, but in general the lawyer's fidelity becomes increasingly attenuated as the years pass. That fading is why the Rules do not bar a lawyer from ever acting against a former client. It also shifts the rule's main concern: the primary purpose of the former-client rule is to protect against adverse use of the past client's confidential information to the advantage of a current client.6 A lawyer who still holds that information can still turn it against the client, and paragraph (c) is the answer to that danger.
The duty to protect confidential information relating to a client's representation is part of the sacred trust of every lawyer.7 It grows out of the lawyer's status as the client's fiduciary, which carries a commitment of loyalty. The lawyer ordinarily must not use or disclose the client's confidential information and must take reasonable measures to safeguard it.8 The Rules' own illustration involves a lawyer who knows that a client, Company A, plans a takeover. Tipping off an investor so that the investor can profit would breach the duty owed to Company A under Rule 1.8(b), apart from any question of federal insider-trading law.9 Paragraph (c) extends comparable protection to a former client's information, and it makes explicit that ending the engagement does not release it.
One opinion has carried the point even past the client's death. In Mickens v. Taylor, the opinion reasoned that a lawyer's fiduciary relationship with a deceased client survives the client's death, citing Swidler & Berlin v. United States. On that view the lawyer, Saunders, labored under irreconcilable obligations: a duty to protect the reputation and confidences of his deceased client, and a duty to impeach the impact evidence the prosecutor presented.10 Treat the passage as an illustration of how far the fiduciary duty is thought to reach. It does not restate paragraph (c).
The duty also has a floor. Paragraph (c) protects information relating to a representation by the lawyer or the lawyer's firm. A lawyer who overhears a neighbor's divorce troubles at a neighborhood gathering holds information that relates to no representation, because the neighbor was never a client of the lawyer or the lawyer's firm. Without a former client and a former representation, the paragraph has nothing to protect.