Colo. RPC 1.9

History

Source: IP(c) amended March 17, 1994, effective July 1, 1994; entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008. COMMENT [1] After termination of a client-lawyer re- lationship, a lawyer has certain continuing du- ties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Un- der this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented mul- tiple clients in a matter represent one of the clients against the others in the same or a sub- stantially related matter after a dispute arose among the clients in that matter, unless all af- fected clients give informed consent. See Com- ment [9]. Current and former government law- yers must comply with this Rule to the extent required by Rule 1.11. [2] The scope of a ‘‘matter’’ for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer’s involve- ment in a matter can also be a question of degree. When a lawyer has been directly in- volved in a specific transaction, subsequent rep- resentation of other clients with materially ad- verse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later repre- senting another client in a factually distinct problem of that type even though the subse- quent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The un- derlying question is whether the lawyer was so involved in the matter that the subsequent rep- resentation can be justly regarded as a changing of sides in the matter in question. [3] Matters are ‘‘substantially related’’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual in- formation as would normally have been ob- tained in the prior representation would materi- ally advance the client’s position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in se- curing environmental permits to build a shop- ping center would be precluded from represent- ing neighbors seeking to oppose rezoning of the property on the basis of environmental consid- erations; however, the lawyer would not be pre- cluded, on the grounds of substantial relation- ship, from defending a tenant of the completed shopping center in resisting eviction for non- payment of rent. Information that has been dis- closed to the public or to other parties adverse to the former client ordinarily will not be dis- qualifying. Information acquired in a prior rep- resentation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representa- tions are substantially related. In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the law- yer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. Lawyers Moving Between Firms [4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the cli- ent previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Sec- ond, the Rule should not be so broadly cast as to preclude other persons from having reason- able choice of legal counsel. Third, the Rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were ap- plied with unqualified rigor, the result would be radical curtailment of the opportunity of law- yers to move from one practice setting to an- other and of the opportunity of clients to change counsel. [5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has ac- tual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or infor- mation relating to a particular client of the firm, and that lawyer later joined another firm, nei- ther the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm. [6] Application of paragraph (b) depends on a situation’s particular facts, aided by infer- ences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in dis- cussions of their affairs; it should be inferred that such a lawyer in fact is privy to all infor- mation about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought. [7] Independent of the question of disquali- fication of a firm, a lawyer changing profes- sional association has a continuing duty to pre- serve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9(c). [8] Paragraph (c) provides that information acquired by the lawyer in the course of repre- senting a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the law- yer from using generally known information about that client when later representing another client. [9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which con- sent must be confirmed in writing under para- graphs (a) and (b). See Rule 1.0(e). With regard to the effectiveness of an advance waiver, see Comment [22] to Rule 1.7. With regard to dis- qualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10. ANNOTATION Law reviews. For formal opinion of the Colorado Bar Association on Ethical Duties of Attorney Selected by Insurer to Represent Its Insured, see 22 Colo. Law. 497 (1993). For article, ‘‘Entity Foundation: Defining the Client And the Duty of Confidentiality’’, see 34 Colo. Law. 77 (July 2005). For article, ‘‘Engagement Letters and Common Conflicts of Interest in Joint Representation’’, see 38 Colo. Law. 43 (Feb. 2009). For article, ‘‘Ethical Consider- ations When Using Freelance Legal Services’’, see 47 Colo. Law. 36 (June 2018). For article ‘‘Former-Client Conflicts Lawyer Disqualifica- tion under Colo. RPC 1.9(a)’’, 49 Colo. Law. 57 (Nov. 2020). Annotator’s note. Rule 1.9 is similar to Rule 1.9 as it existed prior to the 2007 repeal and readoption of the Colorado rules of professional conduct. Relevant cases construing that provi- sion have been included in the annotations to this rule. The purpose of this rule and rule 1.10 is to protect a client’s confidential communica- tions with his attorney. Funplex Partnership v. FDIC, 19 F. Supp. 2d 1202 (D. Colo. 1998). Motions to disqualify counsel rest within the sound discretion of the trial court. FDIC v. Sierra Res., Inc., 682 F. Supp. 1167 (D. Colo. 1987); Funplex Partnership v. FDIC, 19 F. Supp. 2d 1202 (D. Colo. 1998). The severe remedy of disqualification of a criminal defendant’s counsel of choice should be avoided whenever possible. People v. Hoskins, 2014 CO 70, 333 P.3d 828. The party seeking disqualification under this rule must provide the court with specific facts to show that disqualification is neces- sary and he cannot rely on speculation or con- jecture. FDIC v. Sierra Res., Inc., 682 F. Supp. 1167 (D. Colo. 1987); Funplex Partnership v. FDIC, 19 F. Supp. 2d 1202 (D. Colo. 1998). Specifically, the moving party must show that: (1) An attorney-client relationship existed in the past; (2) the present litigation involves a matter that is ‘‘substantially related’’ to the prior litigation; (3) the present client’s interests are materially adverse to the former client’s inter- ests; and (4) the former client has not consented to the disputed representation after consultation. English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498 (D. Colo. 1993); Funplex Part- nership v. FDIC, 19 F. Supp. 2d 1202 (D. Colo. 1998). Substantiality is present if the factual con- texts of the two representations are similar or related. English Feedlot, Inc. v. Norden Lab., Inc., 833 F. Supp. 1498 (D. Colo. 1993); Cole v. Ruidoso Municipal Sch., 43 F.3d 1373 (10th Cir. 1994); Funplex Partnership v. FDIC, 19 F. Supp. 2d 1202 (D. Colo. 1998). A motion to disqualify under section (a) will rarely, if ever, raise an ‘‘identical’’ issue to a disqualification motion in another case because the analysis under section (a) of whether the prior and current matters are sub- stantially related will differ in each case. Villas at HP, H.A. v. Villas at HP, LLC, 2017 CO 53, 394 P.3d 1144. Trial court abused its discretion by dis- qualifying petitioner’s retained counsel of choice in a criminal proceeding. The record was insufficient to support a finding that the parties’ interests were materially adverse. People v. Hoskins, 2014 CO 70, 333 P.3d 828. Trial court abused its discretion in relying on issue preclusion to deny the disqualification motion instead of conducting the requisite analysis under section (a). Villas at HP, H.A. v. Villas at HP, LLC, 2017 CO 53, 394 P.3d 1144. Attorney’s former representation of the al- ternate suspect in criminal case prohibited him from representing the criminal defen- dant where the cases were substantially related because the murder victim in the present case was the informant in the former client’s case. People ex rel. Peters v. District Court, 951 P.2d 926 (Colo. 1998). An attorney needs only to receive consent from his or her former client to represent a new client when the matter the attorney rep- resented the former client in is substantially related to the representation of the new cli- ent. The two matters are ‘‘substantially related’’ when they involve the same transaction or legal dispute or if there is substantial risk that confi- dential factual information as would be nor- mally be obtained by defense counsel in prior representation would materially advance the po- sition of the new client in the current proceed- ing. The record does not support a finding that there was a substantial risk that confidential factual information as would be normally be obtained by defense counsel in prior represen- tation would materially advance the position of the new client in the current proceeding. People v. Frisco, 119 P.3d 1093 (Colo. 2005). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Stern, 522 P.3d 762 (Colo. O.P .D.J. 2022). Applied in English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F. Supp. 1498 (D. Colo. 1993); Persichette v. Owners Ins. Co., 2020 CO 33, 462 P.3d 581.