MRPC Rule 1.9

(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 consents

after consultation.

(b) Unless the former client consents after consultation, 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 has 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.

(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 Rule 1.6 or Rule 3.3 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 Rule 1.6 or Rule 3.3 would

permit or require with respect to a client.

After termination of a client- lawyer relationship, a lawyer may not represent another client

except in conformity with this rule. The principles in Rule 1.7 determine whether the interests of

the present and former client are adverse. Thus, 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.

The scope of a “matter” for purposes of this rule may depend 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 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 wholly 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 jurisdiction. 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.

Lawyers Moving Between Firms.

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When lawyers have been associated in a firm but then end their association, the problem is more

complicated. First, the client previously represented must be reasonably assured that the

principle of loyalty to the client is not compromised. Second, the rule of disqualification should

not be so broadly cast as to preclude other persons from having reasonable choice of legal

counsel. Third, the rule of disqualification 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, 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 imputed disqualification

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.

Reconciliation of these competing principles in the past has been attempted under two rubrics.

One approach has been to seek rules of disqualification per se. For example, it has been held that

a partner in a law firm is conclusively presumed to have access to all confidences concerning all

clients of the firm. Under this analysis, if a lawyer has been a partner in one law firm and then

becomes a partner in another law firm, there is a presumption that all confidences known by a

partner in the first firm are known to all partners in the second firm. This presumption might

properly be applied in some circumstances, especially where the client has been extensively

represented, but may be unrealistic where the client was represented only for limited purposes.

Furthermore, such a rigid rule exaggerates the difference between a partner and an associate in

modern law firms.

The other rubric formerly used for dealing with vicarious disqualification is the appearance of

impropriety proscribed in Canon 9 of the former Michigan Code of Professional Responsibility.

Two problems can arise under this rubric. First, the appearance of impropriety might be

understood to include any new client-lawyer relationship that might make a former client feel

anxious. If that meaning were adopted, disqualification would become little more than a

question of subjective judgment by the former client. Second, since “impropriety” is undefined,

the term “appearance of impropriety” begs the question. Thus, the problem of imputed

disqualification cannot readily be resolved either by simple analogy to a lawyer practicing alone

or by the very general concept of appearance of impropriety.

A rule based on a functional analysis is more appropriate for determining the question of

vicarious disqualification. Two functions are involved: preserving confidentiality and avoiding

positions adverse to a client.

Under Rule 1.10(b), screening may be employed to preserve the confidences of a client when a

lawyer has moved from one firm to another. Rule 1.10(b) applies not just to cases in which a

lawyer’s present and former firms are involved on the date the lawyer moves. The paragraph

also applies where the lawyer’s present firm later wishes to enter a case from which the lawyer is

barred because of information acquired while associated with the prior firm.

Confidentiality.

Preserving confidentiality is a question of access to information. Access to information, in turn,

is essentially a question of fact in particular circumstances. The determination of that question of

fact can be aided by inferences, deductions, or assumptions that reasonably may be made about

the way in which lawyers work together. A lawyer may have general access to files of all clients

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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

discussion 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.

Application of paragraph (b) depends on a situation’s particular facts. In any such inquiry, the

burden of proof should rest upon the lawyer whose disqualification is sought.

Rule 1.10(b), incorporating paragraph (b) of this rule, operates to disqualify the firm 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 of 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(c) for the

restrictions on a firm once a lawyer has terminated association with the firm.

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 Rule 1.6.

Adverse Positions.

The second aspect of loyalty to a client is the lawyer’s obligation to decline subsequent

representations involving positions adverse to a former client arising in substantially related

matters. This obligation requires abstention from adverse representation by the individual

lawyer involved, but does not properly entail abstention of other lawyers through imputed

disqualification. Thus, if a lawyer left one firm for another, the new affiliation would not

preclude the firms involved from continuing to represent clients with adverse interests in the

same or related matters, so long as the conditions of Rule 1.10(b) and (c) have been met.

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.

Disqualification from subsequent representation is for the protection of clients and can be waived

by them. A waiver is effective only if there is disclosure of the circumstances, including the

lawyer’s intended role in behalf of the new client.

With regard to an opposing party raising a question of conflict of interest, see comment to Rule

1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated,

see Rule 1.10.