Concept
Limits on Using Information
Rule 1.9(c): Duty not to use or reveal a former client's information
Limits on Using Information
Model Rule 1.9(c)(1) bars a lawyer from using information relating to the representation to the disadvantage of a former client, and it lifts the bar in two situations: when the Rules would permit or require the use with respect to a client, and when the information has become generally known.1 The provision thus has a core prohibition and two limits. The core restricts use, meaning the lawyer puts the information to work for the lawyer's own benefit or another client's, and it reaches only use that operates to the former client's disadvantage. Those features set (c)(1) apart from (c)(2), which bars revealing information relating to the representation and has no disadvantage element and no generally known clause.2
The two limits rest on different footing. The Rules-permission limit turns on the lawyer's authority to act, and it appears in the same words in (c)(2), so a later section on exceptions borrowed from Rule 1.6 treats it once for both prohibitions. The generally known limit turns on the condition of the information itself, and it belongs to the use prohibition alone.
Use to Former Client's Disadvantage
Three things must be present before (c)(1) is violated. The lawyer must have used something, what the lawyer used must be information relating to the representation, and the use must operate to the former client's disadvantage. The earlier section on protected information covered how far the second element reaches. The work here is the first and third elements, and how a court applied them.
A client confides facts to a lawyer who is a fiduciary bound by loyalty, and a lawyer who turns those facts against the client converts the client's candor into a weapon. The continuing duty to a former client exists to prevent that: absent informed consent, the lawyer may not use the former client's private information to the client's detriment or for the benefit of another.3 Confining (c)(1) to use that disadvantages the former client ties the ban to the interest it protects, the former client's position, so a use that leaves that position untouched threatens nothing the paragraph guards.
As (c)(1) uses the word, use means putting information to work: acting on it, building a strategy around it, or passing it to someone who will act on it. A source on the parallel current-client duty illustrates the last form. A lawyer who tips Investor off to Company A's takeover plans, so that Investor can buy stock in Company B and profit, violates the duty owed to Company A under Rule 1.8(b), whatever the federal insider-trading consequences.4 Merely knowing information is different. A lawyer cannot unlearn a former client's affairs, and one who remembers what the engagement taught but never acts on it or passes it along has not used it, although the prohibition on revealing in (c)(2) still binds.
Florida Bar v. Dunagan shows use that travels through other people. Dunagan had represented Paula Leucht. According to the arrest report, her husband William, the restaurant's sole owner, produced a letter from Dunagan, and the city attorney was contacted and gave a legal opinion. Officers had told Paula to leave the restaurant because William owned it, and she was arrested and charged with disorderly conduct.5 Although the charge was disorderly conduct, the court found that the report clearly showed the officers relied on Dunagan's letter. The report described Paula as showing up against the wishes of her husband, the sole owner.6 The court concluded that Dunagan “clearly used information relating to his representation of Paula Leucht to her disadvantage” and that the disclosures were not permitted under Rule 4-1.6. It therefore approved the referee's conclusion that the letters violated Rule 4-1.9(b), Florida's counterpart to (c)(1).7
Police reliance on the letter was enough to tie it to the arrest. Disadvantage therefore attaches when the lawyer's use contributes to the harm, and a lawyer cannot answer by pointing to the independent decisions of the people who carried it out. Those decisions are how the harm usually arrives. A lawyer who uses a former client's information against her rarely injures her directly, and if she had to prove the lawyer's act was the only cause, the lawyer could always point to someone else's choice, as the formal charge of disorderly conduct might have suggested here.
Disadvantage can also appear with no one in between. A lawyer who represented a businessperson and learned extensive private financial information may not then represent that person's spouse in a divorce.8 The financial details bear directly on how property and support will be decided, so using them would hurt the former client in the most direct way.
The Rules-permission clause did not rescue Dunagan. The referee found the letters impermissible under Rule 4-1.6(b)(2), which allows revealing information to prevent death or substantial bodily harm to another, and Dunagan did not dispute the finding.9 An exception covers only what its own terms cover, and a lawyer who invokes one must fit the information inside it. A later section examines these exceptions in detail.
The court then looked to Florida's sanction standards. Standard 4.22 calls for suspension when a lawyer knowingly reveals information relating to the representation that is not otherwise lawfully permitted to be disclosed and the disclosure causes injury or potential injury to a client.10 Dunagan's use took the form of disclosure to third parties, so a standard written for revealing information fits. Its reference to potential injury means that discipline does not wait for the harm to be complete.
National Medical Enterprises, Inc. v. Godbey shows a different record and a different posture. It was a disqualification dispute in which the court weighed whether the firm's prosecution of an action posed a specific threat to Mr. Cronen. The court stressed that its findings on adversity rested on the pleadings and discovery record as they then stood, and it said it would revisit the ruling if the firm developed substantial evidence of a specific threat to Cronen.11 The contrast with Dunagan lies in the record. Dunagan's letters were a completed act of use, and the only question was whether that act contributed to a harm that had already happened. In Godbey the harm was prospective, and the court tied any change in its ruling to what the firm's own work developed, not to the bare possibility that Cronen could be hurt.
Run on Dunagan, the letters and the arrest satisfy steps one through three, and step four fails because the court found no permitted route for the disclosures.
Generally Known Information
Subparagraph (c)(1) ends with a limit on its ban: a lawyer may use information relating to the former representation “when the information has become generally known.”13 The matching words are absent from (c)(2), which governs revealing information.14 The text does not define the phrase, so its working meaning comes from commentary, and that meaning is narrower than the phrase first suggests.
The reason for the limit lies in what the use prohibition protects. The former client's interest is that confided facts will not be turned against the client, and that interest depends on the facts being secret. When information about a former client is a matter of widespread awareness, the lawyer is not barred from using it in representing a later client or otherwise, even though Rule 1.6 attaches confidentiality to all information relating to the representation, whatever its source and whether or not it is generally known.15 Using a fact that anyone can find takes nothing from the former client that another lawyer, a reporter, or an adversary could not already take, and the lawyer gains no edge from having served the client. The Restatement reaches a similar place by another drafting route, defining confidential client information as information relating to the representation of a client other than information that is generally known.16
Commentary on the rule supplies the working test. Information that has been widely disseminated by the media to the public, or that typically would be obtained by any reasonably prudent lawyer who had never represented the former client, should be considered generally known and ordinarily will not be disqualifying. The essential question is whether, but for having represented the former client, the lawyer would know or discover the information.17
The two routes are two ways of showing the same thing. Wide media coverage shows that the public already has the fact, and typical discovery by a prudent lawyer shows that the fact is available to anyone who does the ordinary work of preparing a case. The but-for question asks whether the representation is the lawyer's source. If it is not, using the fact exploits nothing the former client confided, and the exception applies. If it is, the fact remains the former client's confidence, however easy someone else might find it to learn.
The same commentary draws the line with a pair of scenes. A lawyer who learned extensive private financial information about a businessperson may not represent that person's spouse in a divorce, yet the fact that a lawyer once served a client does not prevent the lawyer from using generally known information about that client when later representing someone else.18
Two arguments try to stretch the phrase, and the but-for question answers both. The first says that some people already know the fact. A few competitors who suspect it, or an industry insider who has heard it, do not make it generally known, because the standard asks what a prudent lawyer with no tie to the client would typically obtain, not whether anyone anywhere holds the fact. The second says that the former client's adversary could discover the fact. In the related setting of successive conflicts, it makes no difference that information might be discoverable by the former client's adversary, because the adversary would first have to know what to ask for, and the former client's own lawyer has exactly the inside knowledge that tells where to look.19 A lawyer who knows what to request only because of the engagement has answered the but-for question against the exception. Fact patterns that stress either argument are pointing at details that do not bear on the test.
The carve-out also separates former clients from clients the lawyer still represents. For a current client, Rule 1.6 attaches confidentiality to all information relating to the representation, regardless of its source and whether or not it is generally known, so the public status of a fact does not shrink what the current client is owed.20 A prospective client receives less protection than a current client. The lawyer's duty of loyalty attaches, but the conflict constraints are more limited because the relationship is confined to considering a representation that was never undertaken.21 The exception's text reaches only use. Whether a lawyer may also repeat a generally known fact is a question for the revealing prohibition, which the next section takes up.