Concept
Duty Without a Conflict
Rule 1.9(c): Duty not to use or reveal a former client's information
Duty Without a Conflict
Rule 1.9(c) protects a former client's information even when the lawyer's new work creates no conflict at all. Its first clause forbids the lawyer to use information relating to the earlier representation to the former client's disadvantage; its second forbids the lawyer to reveal that information. Neither clause mentions a substantially related matter.1
Two questions arise when a lawyer who once served a client is asked to act against that client, and the Rules answer them in different places. Rule 1.9(a) decides whether the lawyer may take the new matter. The lawyer may not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client's, unless the former client gives informed consent, confirmed in writing.2 Paragraph (c) decides what the lawyer may do with former-client information, whether or not the matters are related and whether or not the lawyer would be representing anyone in so acting.3
Paragraph (a) stops at substantially related matters for a practical reason. Forbidding a lawyer ever to act adversely to a former client serves no practical or principled purpose, even though the representation may be long past and the current matter may bear no resemblance to the earlier work.4 A lawyer facing an unrelated matter may therefore take it. The narrower danger, that the lawyer will misuse what the earlier representation revealed, is left for paragraph (c) to meet.
Where the matters do overlap, the protection is strong and works by presumption. A party seeking to disqualify a lawyer who handled a substantially related matter need not identify the confidential information that was shared, or even show that any confidence was divulged, because requiring that showing would undermine the very confidentiality the rule is designed to protect.5 When the earlier matter was litigation, the Restatement goes further: it is conclusively presumed that the lawyer obtained confidential information about the issues in the litigation.6
One former client's project can lead to two quite different later disputes, and the shopping-center illustration shows where the line falls. A lawyer who secured environmental permits for a shopping center is precluded from representing neighbors who oppose rezoning of the property on environmental grounds. The same lawyer is not precluded, on substantial-relationship grounds, from defending a tenant of the completed center against eviction for nonpayment of rent.7 The neighbors' case is a paragraph (a) problem, and the lawyer could accept it only with the owner's informed consent, confirmed in writing. The tenant's case passes paragraph (a), and paragraph (c) continues to govern the information.
The two acts are charged separately because the clauses of paragraph (c) are not twins. The use clause reaches only use to the former client's disadvantage and lifts when the information has become generally known; the reveal clause, on its face, contains neither limit.8 Both yield to what the Rules would permit or require with respect to a client. Later sections take up those exceptions and test how far the textual differences matter.
Two inferences, both tempting, are wrong. The first reasons that an unrelated matter means no confidentiality problem, which confuses freedom to take the engagement with freedom to use what the lawyer knows. The second treats paragraph (c) as the rule that bars the neighbors' representation, when paragraph (a) does that work.
A court policing paragraph (c) in an unrelated matter has no conclusive presumption to lean on, as a Texas disqualification ruling shows. That ruling applies Texas law and is not a holding about the Model Rules. In National Medical Enterprises, Inc. v. Godbey, Baker & Botts prosecuted the action after earlier representing Cronen.9 The party seeking disqualification argued that the conclusive presumptions used for substantially related matters should carry over to unrelated ones. The court declined, reasoning that the policies behind a conclusive presumption fit matters that overlap.10 For an unrelated matter it treated the question as one of fact, namely whether the representation carried a reasonable probability of actual knowing misuse of confidences, and it examined the record. It found that the representation was not likely to result in use of information obtained from representing Cronen.11 The court added that its findings rested on the pleadings and the discovery record then before it, and that it would revisit the ruling if Baker & Botts developed substantial evidence posing a specific threat to Cronen.12
Once no presumption applies, then, the court asks what the lawyer is actually positioned to do with the information, on a record that can change. The duty itself rests on no conflict, no related matter, and no engagement. It is part of the sacred trust of every lawyer, and a lawyer simply may not misappropriate a former client's confidential information to that client's disadvantage, or disclose it without the former client's permission or as an exception to confidentiality allows.13