Concept
Two Conditions Keep the Bar
When the conflicted lawyer leaves: the former firm's continuing duties
Two Conditions Keep the Bar
Rule 1.10(b) frees a firm to take a matter adverse to a client of a lawyer who has left, but the freedom ends when two conditions are both met. The new matter must be the same as, or substantially related to, the matter in which the departed lawyer represented the client. And a lawyer who remains in the firm must have information protected by Rules 1.6 and 1.9(c) that is material to the matter.1 The first condition compares two matters. The second takes inventory of the people who stayed.
The conditions are cumulative, so the firm stays barred only when both are met and goes free when either fails. Each guards against a different risk. Relatedness asks whether the new matter is close enough to the old one for the former client's secrets to matter, because secrets about an unrelated matter give the firm nothing to use against that client. Retained information asks whether those secrets are still inside the firm, because a related matter threatens little when everyone who knew the client's affairs has gone. A firm that takes a related matter after every informed lawyer has left is therefore free, and so is a firm whose remaining lawyers know the client well but whose new matter has no real connection to the old one.
By the time a problem reaches these two conditions, the earlier steps are settled: a lawyer has left, the new matter is adverse to that lawyer's former client, and the firm does not currently represent the client. The conditions then decide whether the bar survives, and it survives only where adversity, relatedness, and retained knowledge all coincide. Because the conditions rest on different evidence, one a comparison of matters and the other an inventory of what the remaining lawyers know, each gets its own treatment below.
Same or Substantially Related Matter
Condition (b)(1) asks whether the matter the firm now wants to take is the same as, or substantially related to, the matter in which the formerly associated lawyer represented the client.2 The text fixes the benchmark. The firm measures the proposed matter against the departed lawyer's own engagement, not against everything the firm has ever done for the client, so the analysis starts by pinning down what the departed lawyer actually worked on.
The relatedness vocabulary comes from the successive-conflict rule. Rule 1.9(a) bars a lawyer who formerly represented a client in a matter from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing.3 The rule does not forbid acting against a former client in every case, because forbidding it serves no practical or principled purpose when the representation is long past and the new matter bears no resemblance to the old one.4 Its target is narrower: information acquired in representing the client may not later be used to that client's disadvantage without its consent.5 Rule 1.10(b)(1) borrows the same words for the same job, so the firm's bar survives a lawyer's departure only where the former client's confidences are realistically at risk.
The comment to Rule 1.9 gives the phrase its content. Matters are substantially related if they involve the same transaction or legal dispute, or if there otherwise is a substantial risk that confidential factual information of the kind normally obtained in the prior representation would materially advance the new client's position in the later matter.6 The first route is the easy one, because a firm cannot oppose a former client in the very deal or lawsuit the departed lawyer handled for it. The second route asks what a lawyer in the departed lawyer's seat would ordinarily have learned. Courts evaluate that risk objectively, by considering what information and facts would typically be disclosed in that kind of relationship, and the test today comes down largely to whether the former client's confidences are at risk of being turned against it.7
The comment's illustrations hold the client and the project steady while the new matter changes. A lawyer who secured environmental permits to build a shopping center may not represent neighbors who oppose rezoning of the property on environmental grounds, because the same project and the same environmental information are at stake. That same lawyer is not barred on substantial-relationship grounds from defending a tenant of the completed center against eviction for nonpayment of rent, because permit-stage confidences would not advance the tenant's position.8 Carry those facts into a departure. If a departed partner did the permit work and the firm is asked to take the neighbors' side, condition (b)(1) is met, and the firm's freedom turns on the second condition about information left behind. If the firm is asked to defend the tenant, (b)(1) fails, and because the conditions are cumulative, the firm may proceed whatever its remaining lawyers happen to know.
Subject-matter labels can mislead in the other direction, which is why the test follows information. A lawyer who represented a businessperson and learned extensive private financial information may not then represent that person's spouse in seeking a divorce.9 A business engagement and a divorce look like different kinds of work, yet the financial information the lawyer holds is exactly what the spouse would want, so the matters are substantially related. A limit runs the other way. A lawyer's having once served a client does not bar later use of generally known information about that client, such as facts widely reported in the media or facts any reasonably prudent lawyer would obtain without having represented the client. The essential question is whether, but for having represented the former client, the lawyer would know or discover the information.10
The former client does not have to prove what it told the departed lawyer. A conclusion that the lawyer holds usable confidential information may rest on the nature of the services the lawyer provided and the information a lawyer ordinarily learns in providing such services, so the client need not reveal its confidences to establish the risk.11 Courts also layer presumptions on top of the objective test. When the earlier matter was litigation, the Restatement's comment says it will be conclusively presumed that the lawyer obtained confidential information about the issues in the litigation.12 The court in Haagen-Dazs Co. v. Perche No! Gelato, Inc., following Trone v. Smith, stated the presumption this way: if there is a reasonable probability that confidences were disclosed which could be used against the client in a later, adverse representation, a substantial relation between the two cases is presumed.13
The benchmark also limits what counts. A stem that stresses the firm's long history with the former client invites the shortcut of treating any adversity to a familiar client as related, but the rule asks only about the departed lawyer's matter.
Material Information Remaining at the Firm
Condition (b)(2) asks whether any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.15 The question has three parts: whose knowledge counts, what kind of information counts, and how much of it matters. The first part marks a change of focus. Condition (b)(1) measured the new matter against the departed lawyer's engagement. Condition (b)(2) turns to the lawyers who stayed and asks what each of them holds from having worked for the former client.
The rule looks at the lawyers who stayed because confidences travel through individual lawyers. One California opinion observes that rule 3-310(E) and Business and Professions Code section 6068 both presuppose that attorney-client confidences are acquired by individual attorneys, not by law firms in general.16 Wyoming's highest court, following the majority of courts, adopted what it called the most prophylactic rule: when the interests of the former client are adverse to a client the attorney now represents, the presumption that the individual attorney received the former client's confidences is irrebuttable.17 The case is Bevan v. Fix. The harm the rule guards against is the use of the former client's secrets against it. Once the conflicted lawyer has gone, that use can happen only through a lawyer who is still in the firm and who holds the secrets, so an inventory of those lawyers answers the question. Jurisdictions presume more or less than the Model Rule's text does, so apply any presumption the stem supplies and otherwise ask what each remaining lawyer actually holds.
The phrase information protected by Rules 1.6 and 1.9(c) reaches the full confidentiality duty, not just privileged communications. Rule 1.6(a) forbids a lawyer to reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized, or an exception permits it, and that duty extends much further than the attorney-client privilege.18 Rule 1.9(c) carries the duty past the end of the engagement, because information a lawyer acquires in representing a client may not later be used to that client's disadvantage without its consent.19 Two consequences follow. A remaining lawyer cannot escape the condition by showing that the information falls outside the privilege. And it does not help that an adversary might eventually obtain the same information in discovery, since the confidentiality duty does not shrink to whatever discovery could not reach.20
The word material ties the information to the new matter. The substantial-relationship test supplies the measure: confidential factual information counts when it would materially advance the adversary's position in the later matter.21 Information that is generally known, such as facts widely reported in the media or facts any prudent lawyer would discover without having served the client, ordinarily is not disqualifying.22 A remaining lawyer who did unrelated work for the client and knows only its general culture and billing habits holds nothing that could advance an adversary's position in a later dispute, while a lawyer who learned the client's specific fallback positions in a related matter holds exactly that. Without a materiality screen, any passing contact with a former client would bar the firm, and the condition would stop tracking the risk of misuse.
A finding that the matters are substantially related therefore does not end the analysis. Relatedness says only that the former client's secrets could matter to the new dispute. Whether those secrets are still inside the firm depends on who stayed.
Transactional drafting shows the condition at work, and corporate takeovers are fertile ground because they are full of conflict possibilities.23
The only difference between the two firms is whether a lawyer who stayed holds the information, which is why the departed lawyer's seniority or reputation never decides the outcome. The protection belongs to the former client, and under the former-client rule the client's informed consent can waive it.24 The next section runs both conditions together on a full departure.