Ind. Prof. Cond. Rule 1.9

Effective January 1, 2005

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent

another person in the same or a substantially related matter in which that person's interests

are materially adverse to the interests of the former client unless the former client gives

informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented

a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1. 6 and 1.9(c)

that is material to the matter; unless the former client gives informed consent, confirmed

in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former

firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client

except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or

require with respect to a client.

Comment

[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties

with respect to confidentiality and conflicts of interest and thus may not represent another

client except in conformity with this Rule. Under 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 multiple clients in a matter

represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give

informed consent. See Comment [9]. Current and former government lawyers 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 involvement in a matter can also be a question of

degree. When a lawyer has been directly involved in a specific transaction, subsequent

representation of other clients with materially adverse 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 representing another client in a factually distinct

problem of that type even though the subsequent 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 jur-

isdictions. The underlying question is whether the lawyer was so involved in the matter

that the subsequent representation 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 information as would normally have been obtained in the prior representation would

materially 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 securing environmental permits to build a shopping center would be precluded from representing neighbors seeking

to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from

defending a tenant of the completed shopping center in resisting eviction for nonpayment

of rent. Information that has been disclosed to the public or to other parties adverse to the

former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance

that may be relevant in determining whether two representations 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 lawyer 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 client previously represented by

the former firm must be reasonably assured that the principle of loyalty to the client is not

compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreas-

onably 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 applied with unqualified rigor, the result

would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.

[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has

actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while

with one firm acquired no knowledge or information relating to a particular client of the

firm, and that lawyer later joined another firm, neither 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 discussions of their affairs; it should be inferred

that such a lawyer in fact is privy to all information 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 disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve 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 representing 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 lawyer 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 consent must be confirmed in writing under paragraphs (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 disqualification of a firm with which

a lawyer is or was formerly associated, see Rule 1.10.