1
00:00:00,040 --> 00:00:03,520
So I want you to imagine 
stepping right into the middle 

2
00:00:03,520 --> 00:00:07,840
of a bustling high stakes 
epidemiology ward. 

3
00:00:08,320 --> 00:00:09,920
Oh wow. 
OK, setting a scene. 

4
00:00:10,000 --> 00:00:14,040
Yeah, you have these doctors 
tracking a highly contagious 

5
00:00:14,040 --> 00:00:16,760
virus, right? 
They are mapping out every 

6
00:00:16,760 --> 00:00:19,440
single person the infected 
individual has spoken to or 

7
00:00:19,440 --> 00:00:21,640
breathed on or even just shared 
a room with. 

8
00:00:21,720 --> 00:00:23,680
Because the whole goal is 
quarantine. 

9
00:00:23,680 --> 00:00:25,320
Exactly. 
You have to isolate the 

10
00:00:25,320 --> 00:00:28,160
contagion before it just, you 
know, spreads to the entire 

11
00:00:28,160 --> 00:00:30,720
hospital. 
And when you transition from the

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00:00:30,720 --> 00:00:34,080
world of, say, torts and 
contracts into the landscape of 

13
00:00:34,080 --> 00:00:37,640
legal ethics, specifically 
conflict analysis, you are 

14
00:00:37,640 --> 00:00:41,040
essentially stepping into that 
exact epidemiology ward. 

15
00:00:41,320 --> 00:00:44,680
That is a that's a really 
intense metaphor, but it works. 

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00:00:44,680 --> 00:00:47,640
It really does because we are 
tracking a contagion. 

17
00:00:47,840 --> 00:00:50,840
But you know, the infection 
isn't a biological virus. 

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00:00:50,960 --> 00:00:53,120
The infection is confidential 
client information. 

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00:00:53,400 --> 00:00:55,080
Right. 
And the moment a lawyer absorbs 

20
00:00:55,080 --> 00:00:57,400
that information, they basically
become a carrier. 

21
00:00:57,400 --> 00:01:00,640
Exactly, and that contagion 
metaphor perfectly captures the 

22
00:01:00,640 --> 00:01:03,760
stakes of what we are going to 
be exploring in this deep dive 

23
00:01:03,760 --> 00:01:05,880
today. 
It does, because if you look at 

24
00:01:05,880 --> 00:01:08,520
the American Bar Association 
model, Rules of Professional 

25
00:01:08,520 --> 00:01:12,720
Conduct, the entire regulatory 
framework is just obsessed with 

26
00:01:12,720 --> 00:01:14,240
containment. 
Oh, absolutely obsessed. 

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00:01:14,240 --> 00:01:17,560
But to really understand how to 
quarantine this ethical 

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infection, we have to recognize 
a massive paradigm shift that 

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00:01:21,840 --> 00:01:25,040
happens the exact second a 
client walks out your door for 

30
00:01:25,040 --> 00:01:27,000
the final time. 
Right, the transition from 

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00:01:27,000 --> 00:01:30,000
current client to former client.
Exactly because when you are 

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00:01:30,000 --> 00:01:33,640
representing a current active 
client, your behavior is 

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00:01:33,640 --> 00:01:37,680
governed by model rule 1.7, and 
the absolute heartbeat of rule 

34
00:01:37,680 --> 00:01:40,280
1.7 is loyalty. 
Undivided loyally. 

35
00:01:40,320 --> 00:01:42,280
Undivided you are their 
champion. 

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00:01:42,280 --> 00:01:44,720
I mean, you cannot look left, 
you cannot look right. 

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00:01:44,880 --> 00:01:47,080
But you know, representations 
eventually end, right? 

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00:01:47,720 --> 00:01:51,680
Deals close, litigation settles,
people move on, and when they 

39
00:01:51,680 --> 00:01:55,520
transition from a current client
to a farmer client, rule 1.7 

40
00:01:55,520 --> 00:01:58,400
just it drops away and rule 1.9 
takes over. 

41
00:01:58,400 --> 00:01:59,920
And the paradigm completely. 
Flips. 

42
00:01:59,920 --> 00:02:01,720
It completely flips, which is 
where. 

43
00:02:02,200 --> 00:02:06,080
The fatal trap really lies for 
anyone you know sitting for the 

44
00:02:06,080 --> 00:02:08,360
MPRE or facing a 
disqualification motion in 

45
00:02:08,360 --> 00:02:09,360
actual practice. 
Yeah. 

46
00:02:09,520 --> 00:02:11,280
Oh, I see it all the time with 
law students. 

47
00:02:11,360 --> 00:02:13,080
Right. 
And junior associates too. 

48
00:02:13,360 --> 00:02:16,560
They constantly try to apply a 
loyalty analysis to a former. 

49
00:02:16,560 --> 00:02:18,440
Client they do. 
They argue that a lawyer is 

50
00:02:18,440 --> 00:02:21,080
being like disloyal by taking a 
new case. 

51
00:02:21,080 --> 00:02:24,360
But loyalty is a mortal thing. 
It literally dies when the 

52
00:02:24,360 --> 00:02:27,080
retainer agreement expires. 
That's a great way to put it. 

53
00:02:27,280 --> 00:02:30,320
What survives the death of the 
representation is the duty of 

54
00:02:30,320 --> 00:02:33,400
confidentiality. 
I mean, the former client rules 

55
00:02:33,400 --> 00:02:35,920
are almost entirely stripped of 
loyalty concerns. 

56
00:02:36,160 --> 00:02:38,360
Right. 
They exist solely to ensure that

57
00:02:38,360 --> 00:02:41,320
the secrets the client gave you 
during the relationship are 

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00:02:41,320 --> 00:02:43,440
never weaponized against them 
later. 

59
00:02:43,560 --> 00:02:45,720
The eternal duty of 
confidentiality. 

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00:02:45,720 --> 00:02:48,120
It's the bedrock of the whole 
legal profession. 

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00:02:48,200 --> 00:02:49,840
It really is. 
I mean, think about it, if 

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00:02:49,840 --> 00:02:52,960
clients believe their darkest 
secrets or their financial 

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00:02:52,960 --> 00:02:55,480
vulnerabilities have an 
expiration date. 

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00:02:55,640 --> 00:02:57,720
They'll just stop telling their 
lawyers the truth. 

65
00:02:57,840 --> 00:03:00,400
Exactly. 
And the adversarial system 

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00:03:00,400 --> 00:03:02,600
completely collapses with 
without candor. 

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00:03:02,920 --> 00:03:06,360
So our mission for you today is 
to rigorously map this out. 

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00:03:06,480 --> 00:03:07,840
We have a lot of ground to 
cover. 

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00:03:08,040 --> 00:03:10,680
We really do. 
We have to look at how this 

70
00:03:10,680 --> 00:03:13,840
infection attaches to the 
individual lawyer under Rule 

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00:03:13,840 --> 00:03:15,600
1.9. 
Right, patient zero. 

72
00:03:15,920 --> 00:03:18,240
Then we have to examine what 
happens when that infected 

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00:03:18,240 --> 00:03:21,400
lawyer walks into a firm of, 
say, 500 other attorneys. 

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00:03:21,480 --> 00:03:24,520
Which triggers the imputation 
rules under 1.10. 

75
00:03:24,600 --> 00:03:26,880
Exactly. 
And finally, we're going to look

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00:03:26,880 --> 00:03:29,520
at the specialized quarantine 
protocols for government lawyers

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00:03:29,520 --> 00:03:31,760
entering private practice under 
Rule 1. 

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00:03:31,840 --> 00:03:34,120
One point LEB. 
So let's start with patient 

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00:03:34,120 --> 00:03:38,480
zero, the individual lawyer. 
The black letter law of Rule 1.9

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00:03:38,680 --> 00:03:41,360
a. 
Right Rule 1.9 A lays out a very

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00:03:41,360 --> 00:03:44,920
specific 3 pronged test to 
determine if a lawyer is 

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00:03:44,920 --> 00:03:47,560
ethically compromised from 
taking on a new client. 

83
00:03:47,640 --> 00:03:51,240
Because it isn't just a vague 
sense of this feels wrong. 

84
00:03:51,280 --> 00:03:52,640
Right. 
No, no, there are mandatory 

85
00:03:52,640 --> 00:03:55,560
elements. 
A former client conflict exists 

86
00:03:55,680 --> 00:03:58,280
if the lawyer represents a new 
person in the same or a 

87
00:03:58,280 --> 00:04:00,960
substantially related matter. 
OK, that's prong one. 

88
00:04:01,040 --> 00:04:06,000
Right prong 2 The new person's 
interests are materially adverse

89
00:04:06,200 --> 00:04:07,760
to the former client and prong. 
3. 

90
00:04:08,280 --> 00:04:11,240
The lawyer failed to get 
informed consent, confirmed in 

91
00:04:11,240 --> 00:04:12,880
writing, from that former 
client. 

92
00:04:13,080 --> 00:04:16,279
Those 3 prongs are just ironclad
gatekeepers. 

93
00:04:16,279 --> 00:04:18,360
They really are. 
And that requirement for 

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00:04:18,360 --> 00:04:22,440
informed consent to be confirmed
in writing, that is an area 

95
00:04:22,440 --> 00:04:24,480
where practitioners stumble so 
often. 

96
00:04:24,480 --> 00:04:27,600
Oh, constantly. 
Because we aren't talking about 

97
00:04:27,600 --> 00:04:30,880
a casual phone call where the 
former client says, yeah, sure, 

98
00:04:30,880 --> 00:04:32,360
I don't care if you sue me. 
Right. 

99
00:04:32,600 --> 00:04:36,520
The rules require a really deep,
meaningful consultation about 

100
00:04:36,520 --> 00:04:39,440
the material risks involved. 
The client has to understand 

101
00:04:39,440 --> 00:04:42,280
exactly what confidential 
information is at stake. 

102
00:04:42,280 --> 00:04:45,360
Exactly, and how it could 
theoretically be used against 

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00:04:45,360 --> 00:04:47,720
them. 
Only after that consultation can

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00:04:47,720 --> 00:04:50,800
the waiver be valid. 
And even then, it has to be 

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00:04:50,800 --> 00:04:53,920
memorialized in writing to 
prevent convenient amnesia later

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00:04:53,920 --> 00:04:56,040
on. 
Because people tend to forget 

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00:04:56,040 --> 00:04:58,240
what they agreed to when things 
get heated. 

108
00:04:58,360 --> 00:05:00,880
Exactly. 
But the real friction, the area 

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00:05:00,880 --> 00:05:04,080
that absolutely melts the brains
of law students and practicing 

110
00:05:04,080 --> 00:05:07,600
attorneys alike, isn't just the 
prohibition on taking the case. 

111
00:05:07,600 --> 00:05:10,080
Right, it's the handling of the 
information itself. 

112
00:05:10,080 --> 00:05:14,360
Yes, governed by rules 1.9 D and
1.9 C, This is where that shift 

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00:05:14,360 --> 00:05:16,400
to confidentiality takes center 
stage. 

114
00:05:16,560 --> 00:05:20,080
And the distinction between the 
word using and the word 

115
00:05:20,080 --> 00:05:22,840
revealing becomes incredibly 
fraught. 

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00:05:23,240 --> 00:05:25,480
It is a linguistic and ethical 
minefield. 

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00:05:25,880 --> 00:05:30,400
Let's break it down. 
Under Rule 1.9 B, an attorney is

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00:05:30,400 --> 00:05:33,680
strictly prohibited from using 
information relating to the 

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00:05:33,680 --> 00:05:36,680
representation to the 
disadvantage of the former 

120
00:05:36,680 --> 00:05:39,040
client. 
So for example, if you know 

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00:05:39,040 --> 00:05:42,160
their settlement bottom line 
from a previous negotiation. 

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00:05:42,160 --> 00:05:45,680
You cannot use that knowledge to
squeeze them in a new, unrelated

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00:05:45,680 --> 00:05:47,560
negotiation. 
That makes perfect sense. 

124
00:05:47,560 --> 00:05:51,200
But rule 1.9 B does provide a 
specific carve out. 

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00:05:51,600 --> 00:05:54,680
You can use that information if 
it has become generally known. 

126
00:05:54,880 --> 00:05:56,760
Oh, OK. 
So if it's blasted across the 

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00:05:56,760 --> 00:05:59,040
financial news networks, it's 
fair game to use. 

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00:05:59,040 --> 00:06:03,320
Exactly, but the traps snaps 
shut when you look at rule 1.9 C

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00:06:03,320 --> 00:06:06,400
which dictates that a lawyer 
shall not reveal information 

130
00:06:06,400 --> 00:06:09,200
relating to the representation. 
Wait, is there a carve out for 

131
00:06:09,200 --> 00:06:11,280
revealing? 
It no, there is no generally 

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00:06:11,280 --> 00:06:12,800
known exception attached to 
revealing. 

133
00:06:12,800 --> 00:06:16,480
It which seems utterly bizarre 
when you try to map it onto real

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00:06:16,480 --> 00:06:19,160
world behavior. 
Bizarre is the right word. 

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00:06:19,480 --> 00:06:22,480
Think about this. 
If I'm an attorney who just want

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00:06:22,480 --> 00:06:27,320
a landmark high profile criminal
appeal, the appellate court is 

137
00:06:27,320 --> 00:06:29,760
going to publish a 40 page 
opinion. 

138
00:06:30,160 --> 00:06:31,760
Right. 
And that opinion is going to 

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00:06:31,760 --> 00:06:34,400
detail every single fact of the 
case. 

140
00:06:34,480 --> 00:06:38,320
The timeline, the evidence, the 
client's background. 

141
00:06:38,760 --> 00:06:42,200
It is a completely public, 
searchable government document. 

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00:06:42,200 --> 00:06:43,600
Anyone can read it? 
Anyone. 

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00:06:43,960 --> 00:06:46,640
So a few years go by and I 
decide I want to write a law 

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00:06:46,640 --> 00:06:50,320
review article, or maybe just a 
detailed blog post analyzing the

145
00:06:50,320 --> 00:06:52,720
nuances of my former clients 
published case. 

146
00:06:53,480 --> 00:06:57,000
Under a strict reading of Rule 
1.9, CI am forbidden from 

147
00:06:57,040 --> 00:06:59,440
independently discussing a 
public court document. 

148
00:06:59,560 --> 00:07:02,480
You are forbidden, and the 
disciplinary boards enforce that

149
00:07:02,480 --> 00:07:04,640
prohibition with shocking 
rigidity. 

150
00:07:04,720 --> 00:07:06,840
It's wild. 
We rely heavily here on a 

151
00:07:06,840 --> 00:07:09,200
brilliant piece of scholarship 
published in the Vermont Law 

152
00:07:09,200 --> 00:07:12,320
Review, which directly attacks 
this paradox. 

153
00:07:12,320 --> 00:07:15,640
The article titled On the 
absurdity of Model Rule 1.9. 

154
00:07:15,640 --> 00:07:18,640
Aptly titled, right? 
The author points out that the 

155
00:07:18,640 --> 00:07:20,920
modern interpretation of 
information relating to the 

156
00:07:20,920 --> 00:07:24,320
representation is so expansive 
that it swallows everything. 

157
00:07:24,400 --> 00:07:26,120
Regardless of the source. 
Right. 

158
00:07:26,120 --> 00:07:29,240
It doesn't matter if the facts 
were shouted in open court with 

159
00:07:29,240 --> 00:07:32,280
reporters present or if they are
sitting on the front page of The

160
00:07:32,280 --> 00:07:35,160
New York Times. 
The duty of confidentiality is 

161
00:07:35,160 --> 00:07:37,640
treated as perpetual and 
all-encompassing. 

162
00:07:38,000 --> 00:07:41,240
The Vermont Law Review critique 
is so fascinating because it 

163
00:07:41,240 --> 00:07:44,360
tackles the basic linguistics of
the word reveal. 

164
00:07:44,560 --> 00:07:46,160
Right. 
What does it actually mean to 

165
00:07:46,160 --> 00:07:48,400
reveal something? 
Well, if you look at the 

166
00:07:48,400 --> 00:07:52,320
dictionary definition, to reveal
something means to make a secret

167
00:07:52,320 --> 00:07:54,800
known, to uncover something 
hidden. 

168
00:07:55,160 --> 00:07:58,400
You cannot logically spoil the 
ending of a movie that came out 

169
00:07:58,400 --> 00:07:59,800
50 years ago. 
Exactly. 

170
00:08:00,160 --> 00:08:03,480
The culture already knows Darth 
Vader is Loop's father. 

171
00:08:03,800 --> 00:08:07,240
It's linguistically impossible 
to reveal something that is 

172
00:08:07,240 --> 00:08:10,040
universally known. 
Yet the ethics committees 

173
00:08:10,040 --> 00:08:12,760
essentially treat the attorney 
as being under a permanent, 

174
00:08:12,760 --> 00:08:15,440
lifelong gag order regarding the
client's life. 

175
00:08:15,960 --> 00:08:18,720
How did we even get here? 
The historical context really 

176
00:08:18,720 --> 00:08:21,200
explains how we ended up in this
semantic trap. 

177
00:08:21,640 --> 00:08:24,840
If we go back to the predecessor
of the current model rules, the 

178
00:08:24,840 --> 00:08:28,200
old ABA Model Code of 
Professional Responsibility, the

179
00:08:28,200 --> 00:08:30,960
phrasing was much tighter. 
OK, what did the old code say? 

180
00:08:31,160 --> 00:08:33,039
The old. 
Code protected a client's 

181
00:08:33,039 --> 00:08:36,679
confidences and secrets. 
A confidence was information 

182
00:08:36,679 --> 00:08:40,320
protected by attorney-client 
privilege, and a secret was 

183
00:08:40,360 --> 00:08:44,080
other information the client 
requested be held inviolate or 

184
00:08:44,080 --> 00:08:47,280
which would be embarrassing or 
detrimental if disclosed. 

185
00:08:47,320 --> 00:08:49,680
See, that framework made logical
sense. 

186
00:08:49,680 --> 00:08:51,640
It did. 
If something was public 

187
00:08:51,640 --> 00:08:53,840
knowledge, it was no longer a 
secret so you could talk about 

188
00:08:53,840 --> 00:08:55,800
it. 
But then the ABA drafted the new

189
00:08:55,800 --> 00:08:59,080
model rules. 
And they vastly expanded the 

190
00:08:59,080 --> 00:09:03,240
scope to all information 
relating to the representation, 

191
00:09:03,520 --> 00:09:06,800
specifically to cast the widest 
possible net of protection. 

192
00:09:06,800 --> 00:09:08,920
Which creates incredible exam 
fodder. 

193
00:09:09,320 --> 00:09:12,200
You are inevitably going to see 
a fact pattern on a professional

194
00:09:12,200 --> 00:09:15,280
responsibility exam where an 
attorney discovers information 

195
00:09:15,280 --> 00:09:17,840
about a former client by reading
the morning newspaper. 

196
00:09:17,960 --> 00:09:20,880
Or pulling a publicly filed 
pleading from a courthouse 

197
00:09:20,880 --> 00:09:23,160
database. 
The prompt is baiting you. 

198
00:09:23,720 --> 00:09:26,160
It wants you to jump to the 
conclusion that because the 

199
00:09:26,160 --> 00:09:29,040
information is in the public 
domain, the duty of 

200
00:09:29,040 --> 00:09:31,800
confidentiality has evaporated. 
But it has not. 

201
00:09:31,960 --> 00:09:34,800
It has not. 
While you might be able to use 

202
00:09:34,800 --> 00:09:38,840
generally known information in a
legal proceeding, you cannot 

203
00:09:38,840 --> 00:09:41,240
independently reveal or 
broadcast it like. 

204
00:09:41,240 --> 00:09:44,040
Writing a tell all book or 
giving a podcast interview. 

205
00:09:44,040 --> 00:09:46,520
Exactly. 
Not without explicit written 

206
00:09:46,520 --> 00:09:50,000
consent from the former client. 
And the policy justification for

207
00:09:50,000 --> 00:09:52,960
this, despite the absurdity of 
the public record trap, is 

208
00:09:52,960 --> 00:09:56,400
really rooted in client trust. 
Because the legal profession 

209
00:09:56,400 --> 00:09:59,040
demands that clients bare their 
souls. 

210
00:09:59,120 --> 00:10:01,160
Right. 
They have to confess their worst

211
00:10:01,160 --> 00:10:05,240
mistakes, their deepest fears 
and their most damning documents

212
00:10:05,240 --> 00:10:08,000
to their lawyers. 
And if there is even a sliver of

213
00:10:08,000 --> 00:10:10,000
a chance that a lawyer could 
later act as a public 

214
00:10:10,000 --> 00:10:12,920
commentator on those difficult 
moments, the client will 

215
00:10:12,920 --> 00:10:15,720
withhold information so the. 
Rule is over inclusive by 

216
00:10:15,720 --> 00:10:17,720
design. 
Right, so we've established that

217
00:10:17,720 --> 00:10:20,880
the contagion is permanent. 
The secrets belong to the client

218
00:10:20,880 --> 00:10:22,960
forever. 
But how do we actually prove 

219
00:10:22,960 --> 00:10:26,080
that a new case threatens those 
specific secrets? 

220
00:10:26,760 --> 00:10:29,120
This brings us to the 
operational machinery of former 

221
00:10:29,120 --> 00:10:32,480
client analysis, these 
substantially related tests. 

222
00:10:32,560 --> 00:10:35,240
A big one. 
It's huge, yeah, because it's 

223
00:10:35,240 --> 00:10:38,080
not enough to simply point out 
that you used to represent the 

224
00:10:38,080 --> 00:10:40,160
person you are now suing. 
Right, you have to prove an 

225
00:10:40,160 --> 00:10:43,320
intrinsic dangerous connection 
between the old work and the new

226
00:10:43,320 --> 00:10:44,720
work. 
And this is where we have to 

227
00:10:44,720 --> 00:10:46,960
completely remove human memory 
from the equation. 

228
00:10:47,200 --> 00:10:49,480
The standard is entirely 
objective. 

229
00:10:49,720 --> 00:10:52,800
I have actually seen attorneys 
attempt to defeat a 

230
00:10:52,800 --> 00:10:56,960
disqualification motion by 
submitting A sworn affidavit. 

231
00:10:57,320 --> 00:11:01,400
Really saying what? 
Saying I handled that merger 15 

232
00:11:01,400 --> 00:11:06,240
years ago, I have reviewed my 
files and I swear under penalty 

233
00:11:06,240 --> 00:11:09,000
of perjury that I do not 
remember a single confidential 

234
00:11:09,000 --> 00:11:10,640
fact about that client's 
business. 

235
00:11:10,640 --> 00:11:13,440
And how do courts handle? 
That they universally reject it 

236
00:11:13,440 --> 00:11:15,040
of. 
Course they do, because memory 

237
00:11:15,040 --> 00:11:18,320
is subjective, it's flawed and 
it's completely impossible to 

238
00:11:18,320 --> 00:11:21,080
cross examine. 
Right, You can't put an MRI on a

239
00:11:21,080 --> 00:11:23,920
lawyer's brain to prove they 
forgot the secret recipe. 

240
00:11:23,960 --> 00:11:26,760
Precisely so. 
The modern majority approach, 

241
00:11:26,880 --> 00:11:30,760
the test adopted by almost all 
jurisdictions, asks A purely 

242
00:11:30,760 --> 00:11:32,720
objective hypothetical question 
and. 

243
00:11:32,760 --> 00:11:35,320
What is that question? 
Could confidential information 

244
00:11:35,320 --> 00:11:38,160
normally have been obtained in 
the former representation that 

245
00:11:38,160 --> 00:11:40,880
would materially advance the new
client's position in the current

246
00:11:40,880 --> 00:11:43,600
matter? 
Normally that's the operative 

247
00:11:43,600 --> 00:11:44,440
word. 
Yes. 

248
00:11:44,680 --> 00:11:46,600
We don't care what you actually 
learned. 

249
00:11:46,920 --> 00:11:51,040
We care about what a lawyer 
doing that specific job in that 

250
00:11:51,040 --> 00:11:53,200
specific context typically 
learns. 

251
00:11:53,400 --> 00:11:56,280
And if the answer to that 
objective question is yes. 

252
00:11:56,760 --> 00:11:59,640
If a lawyer drafting that kind 
of contract or defending that 

253
00:11:59,640 --> 00:12:03,360
kind of lawsuit normally absorbs
the type of confidential facts 

254
00:12:03,360 --> 00:12:06,600
that would be a weapon in the 
new case, the court does 

255
00:12:06,600 --> 00:12:08,920
something drastic. 
They adopt an irrebutable 

256
00:12:08,920 --> 00:12:11,160
presumption. 
Yes, the irrebutable 

257
00:12:11,160 --> 00:12:13,440
presumption. 
It's a fascinating legal 

258
00:12:13,440 --> 00:12:15,560
mechanism. 
It really is because in most 

259
00:12:15,560 --> 00:12:18,280
areas of law, presumptions can 
be challenged, right? 

260
00:12:18,480 --> 00:12:21,160
Usually yes. 
If the law presumes something, 

261
00:12:21,320 --> 00:12:23,360
you are allowed to introduce 
evidence to prove the 

262
00:12:23,360 --> 00:12:25,360
presumption. 
Wrong, but not here. 

263
00:12:25,360 --> 00:12:28,080
Not here. 
If the matters are deemed 

264
00:12:28,080 --> 00:12:31,600
substantially related, the court
conclusively presumes that the 

265
00:12:31,600 --> 00:12:34,520
lawyer did receive the 
disqualifying confidential 

266
00:12:34,520 --> 00:12:36,280
information. 
The gavel comes down. 

267
00:12:36,480 --> 00:12:41,280
The gavel comes down, you are 
disqualified, and no amount of 

268
00:12:41,280 --> 00:12:45,000
evidence, testimony or pleading 
will allow you to argue 

269
00:12:45,000 --> 00:12:47,280
otherwise. 
There's a 7th Circuit case 

270
00:12:47,280 --> 00:12:51,400
Analytica Inky NPD Research that
is the absolute benchmark for 

271
00:12:51,400 --> 00:12:54,120
this doctrine. 
Oh Judge Posner's opinion. 

272
00:12:54,120 --> 00:12:57,800
Yes, Posner's reasoning 
perfectly articulates why the 

273
00:12:57,800 --> 00:12:59,680
presumption has to be 
irrebutable. 

274
00:12:59,720 --> 00:13:02,840
Walk us through his logic. 
Well, if we allowed a lawyer to 

275
00:13:02,840 --> 00:13:05,520
argue I didn't actually learn 
any secrets, how would the 

276
00:13:05,520 --> 00:13:07,200
former client prove they were 
lying? 

277
00:13:07,440 --> 00:13:08,640
That's the paradox. 
Right. 

278
00:13:08,720 --> 00:13:11,720
The former client would be 
forced to stand up in open court

279
00:13:11,720 --> 00:13:14,680
and say, yes, you did. 
You learned XY and Z. 

280
00:13:14,680 --> 00:13:18,120
They would have to broadcast the
exact confidential secrets 

281
00:13:18,120 --> 00:13:21,440
they're trying to protect just 
to win the disqualification 

282
00:13:21,440 --> 00:13:22,960
motion. 
It would be a nightmare. 

283
00:13:22,960 --> 00:13:25,880
So the irrebutable presumption 
protects the client from having 

284
00:13:25,880 --> 00:13:28,720
to destroy their own 
confidentiality to save it. 

285
00:13:29,000 --> 00:13:32,440
It is such an elegant solution 
to a massive procedural problem.

286
00:13:32,440 --> 00:13:35,720
It is, the Analytica court 
emphasized, that we must look 

287
00:13:35,720 --> 00:13:38,320
entirely at the relationship 
between the matters themselves. 

288
00:13:38,560 --> 00:13:41,240
Let's apply this objective 
standard to a practical 

289
00:13:41,240 --> 00:13:45,040
scenario. 
We have a fantastic fact pattern

290
00:13:45,040 --> 00:13:47,760
drawn from Nebraska Ethics 
Opinion 1210. 

291
00:13:48,200 --> 00:13:50,320
The rural real estate developer 
case. 

292
00:13:50,520 --> 00:13:52,440
Yes. 
So we have an attorney 

293
00:13:52,440 --> 00:13:56,080
practicing in a rural county. 
This attorney is hired by a real

294
00:13:56,080 --> 00:13:59,360
estate developer to draft the 
restrictive covenants for a 

295
00:13:59,360 --> 00:14:00,960
brand new residential 
subdivision. 

296
00:14:01,320 --> 00:14:04,480
OK, so the attorney drafts the 
rules governing lot sizes, 

297
00:14:04,480 --> 00:14:07,360
architectural guidelines, HOA 
dues, all that stuff. 

298
00:14:07,480 --> 00:14:11,240
Exactly a few years pass, the 
representation ends, the 

299
00:14:11,240 --> 00:14:12,760
developer moves on to other 
projects. 

300
00:14:12,760 --> 00:14:16,120
Standard transactional work. 
But down the line, the neighbors

301
00:14:16,120 --> 00:14:18,920
living in that subdivision 
become furious with the 

302
00:14:18,920 --> 00:14:22,920
developer over a zoning issue. 
And they want to sue him to 

303
00:14:22,920 --> 00:14:25,080
invalidate the very covenants he
created. 

304
00:14:25,080 --> 00:14:26,360
Right. 
And who do they want to hire? 

305
00:14:26,640 --> 00:14:29,200
The exact same attorney who 
drafted those covenants in the 

306
00:14:29,200 --> 00:14:30,840
first place. 
Ouch. 

307
00:14:30,840 --> 00:14:33,320
Now, the attorney's defense in 
this scenario is always the 

308
00:14:33,320 --> 00:14:34,720
same, isn't it? 
Oh, totally. 

309
00:14:34,960 --> 00:14:37,160
They argue that drafting 
restrictive covenants is 

310
00:14:37,160 --> 00:14:39,840
essentially just administrative 
legal plumbing. 

311
00:14:40,080 --> 00:14:43,040
Right, I took a standard 
boilerplate template, changed 

312
00:14:43,040 --> 00:14:46,680
the names, updated the lot 
numbers, and filed it with the 

313
00:14:46,680 --> 00:14:48,960
county clerk. 
I didn't learn any deep, dark 

314
00:14:48,960 --> 00:14:51,360
corporate secrets. 
I just did paperwork. 

315
00:14:51,520 --> 00:14:54,680
But under the substantially 
related test, that defense 

316
00:14:54,680 --> 00:14:56,680
disintegrates. 
It completely falls apart. 

317
00:14:56,920 --> 00:14:59,960
The Nebraska Advisory Committee 
walked through the objective 

318
00:14:59,960 --> 00:15:01,600
analysis. 
Florida State. 

319
00:15:02,000 --> 00:15:05,160
They didn't ask if the attorney 
remembered specific secrets. 

320
00:15:05,160 --> 00:15:09,440
No, they asked, what does a 
lawyer normally learn when 

321
00:15:09,440 --> 00:15:11,160
drafting covenants for a 
developer? 

322
00:15:11,240 --> 00:15:14,840
Well, during that process the 
lawyer normally has extensive 

323
00:15:14,840 --> 00:15:18,000
conversations with the client 
about their long term goals for 

324
00:15:18,000 --> 00:15:20,160
the land. 
Their financial vulnerabilities 

325
00:15:20,160 --> 00:15:22,600
regarding the infrastructure. 
And most importantly, their 

326
00:15:22,600 --> 00:15:26,080
internal attitudes about the 
legal enforceability of those 

327
00:15:26,080 --> 00:15:28,040
restrictions. 
The lawyer knows where the 

328
00:15:28,040 --> 00:15:30,800
developer believes the legal 
loopholes are because the 

329
00:15:30,800 --> 00:15:33,000
developer asked the lawyer to 
try and close them. 

330
00:15:33,240 --> 00:15:36,520
So if the attorney now switches 
sides and represents the angry 

331
00:15:36,520 --> 00:15:40,160
neighbors, they are armed with 
the psychological and strategic 

332
00:15:40,160 --> 00:15:43,960
playbook of the developer. 
That knowledge would undeniably 

333
00:15:43,960 --> 00:15:45,960
materially advance the Neighbors
lawsuit. 

334
00:15:46,040 --> 00:15:47,920
The matters are substantially 
related. 

335
00:15:47,920 --> 00:15:51,120
The irrebutable presumption 
locks in and the attorney is 

336
00:15:51,120 --> 00:15:53,520
disqualified. 
What's also crucial about that 

337
00:15:53,520 --> 00:15:57,200
Nebraska opinion is how it 
handles the concept of waiver. 

338
00:15:57,200 --> 00:15:59,680
Oh yes, the limited waiver 
attempt. 

339
00:15:59,680 --> 00:16:03,080
Right in the fact pattern, the 
developers New Litigation 

340
00:16:03,080 --> 00:16:06,440
Council sent an e-mail saying we
will waive the conflict, but 

341
00:16:06,440 --> 00:16:09,200
only for the limited purpose of 
engaging in settlement 

342
00:16:09,200 --> 00:16:11,280
negotiations. 
And what did the committee say? 

343
00:16:11,560 --> 00:16:13,880
They ruled that was 
insufficient. 

344
00:16:14,040 --> 00:16:17,520
Informed consent must be 
absolute, it must be in writing 

345
00:16:17,800 --> 00:16:20,440
and the client must be fully 
apprised of the terrifying 

346
00:16:20,440 --> 00:16:24,400
reality that their former lawyer
is about to sit across the table

347
00:16:24,400 --> 00:16:26,120
from them. 
It's a great example of 

348
00:16:26,120 --> 00:16:28,600
transactional work colliding 
with litigation. 

349
00:16:28,680 --> 00:16:31,240
It is, but we also need to 
explore the boundaries of the 

350
00:16:31,240 --> 00:16:34,280
test when dealing with pure 
litigation defense. 

351
00:16:34,400 --> 00:16:36,480
The scenario you call the 
nursing home trap. 

352
00:16:36,480 --> 00:16:40,320
Yes, heavily analyzed an ABA 
Opinion 497. 

353
00:16:40,560 --> 00:16:44,200
Imagine a defense attorney whose
entire practice is representing 

354
00:16:44,200 --> 00:16:46,200
a massive nursing home 
conglomerate. 

355
00:16:46,480 --> 00:16:49,760
They defend the facility in a 
slip and fall negligence case. 

356
00:16:50,280 --> 00:16:52,640
The plaintiff slipped on a wet 
floor in the cafeteria. 

357
00:16:52,920 --> 00:16:55,680
The case settles. 
Standard premises liability, 

358
00:16:55,680 --> 00:16:58,000
right? 
Three years later, the attorney 

359
00:16:58,000 --> 00:17:01,720
leaves defense work and joins A 
plaintiff's personal injury 

360
00:17:01,720 --> 00:17:03,640
firm. 
A new client walks in. 

361
00:17:03,680 --> 00:17:04,920
And they want to sue the nursing
home. 

362
00:17:05,160 --> 00:17:07,680
Exactly. 
They want to sue the exact same 

363
00:17:07,680 --> 00:17:11,040
nursing home facility, but the 
facts are entirely different. 

364
00:17:11,480 --> 00:17:14,839
This is a medical malpractice 
claim regarding a severe 

365
00:17:14,839 --> 00:17:17,440
medication dosage error by a 
late night nurse. 

366
00:17:17,560 --> 00:17:20,599
Now the instinct for a lot of 
students is to immediately 

367
00:17:20,599 --> 00:17:24,119
scream conflict. 
Because it's the same defendant.

368
00:17:24,160 --> 00:17:27,480
Same defendant, same building, 
same broad category of tort law.

369
00:17:27,800 --> 00:17:29,880
But the courts often pump the 
brakes here. 

370
00:17:30,080 --> 00:17:33,080
Why is that? 
Because defending a wet floor 

371
00:17:33,080 --> 00:17:36,600
premises liability case does not
normally give an attorney 

372
00:17:36,600 --> 00:17:39,880
confidential, actionable insight
into the pharmaceutical 

373
00:17:39,880 --> 00:17:42,480
protocols and nursing staff of 
training manuals of the 

374
00:17:42,480 --> 00:17:44,400
facility. 
The facts are distinct. 

375
00:17:44,600 --> 00:17:49,560
Highly distinct general ambient 
knowledge that the nursing home 

376
00:17:49,560 --> 00:17:53,160
has a cafeteria in the legal 
department isn't the type of 

377
00:17:53,160 --> 00:17:57,520
specific material confidence 
that triggers the irrebutable 

378
00:17:57,520 --> 00:17:59,800
presumption. 
So the matters are not 

379
00:17:59,800 --> 00:18:02,080
substantially related. 
Generally, no. 

380
00:18:02,640 --> 00:18:05,960
However, and this is big, 
however, the analysis flips 

381
00:18:05,960 --> 00:18:08,960
entirely if the scope of that 
initial slip and fall 

382
00:18:08,960 --> 00:18:11,200
representation was unusually 
broad. 

383
00:18:11,200 --> 00:18:13,600
How broad? 
Let's say during the defense of 

384
00:18:13,600 --> 00:18:16,480
that wet floor case, the 
attorney was brought into the 

385
00:18:16,480 --> 00:18:19,160
inner sanctum of the nursing 
home's corporate structure. 

386
00:18:19,200 --> 00:18:22,640
They were given total access to 
the Global Risk Management 

387
00:18:22,640 --> 00:18:25,040
Playbook. 
Yes, they learned exactly what 

388
00:18:25,040 --> 00:18:28,040
the corporations financial pain 
points are, how they calculate 

389
00:18:28,040 --> 00:18:30,480
the lifetime value of a 
settlement, and which specific 

390
00:18:30,480 --> 00:18:32,600
executives are terrified of 
taking the stand. 

391
00:18:32,680 --> 00:18:34,720
That is no longer ambient 
knowledge. 

392
00:18:34,720 --> 00:18:37,040
That is confidential strategic 
intelligence. 

393
00:18:37,560 --> 00:18:39,960
If the attorney possesses the 
master playbook on how the 

394
00:18:39,960 --> 00:18:43,560
defendant settles cases, that 
information will materially 

395
00:18:43,560 --> 00:18:45,920
advance any future plaintiffs 
claim against them. 

396
00:18:45,920 --> 00:18:48,640
Regardless of whether it's a 
slip and fall or a medication 

397
00:18:48,640 --> 00:18:51,800
error. 
Exactly that broad exposure 

398
00:18:52,120 --> 00:18:55,520
pushes the matters directly into
the substantially related zone. 

399
00:18:55,680 --> 00:18:58,800
So the objective test requires 
us to meticulously map the 

400
00:18:58,800 --> 00:19:00,560
contours of what was normally 
learned. 

401
00:19:00,800 --> 00:19:03,720
Right, but establishing that the
matters are related is only half

402
00:19:03,720 --> 00:19:06,120
the battle. 
The rule also demands that the 

403
00:19:06,120 --> 00:19:09,960
new clients interest be 
materially adverse to the former

404
00:19:09,960 --> 00:19:12,000
client. 
And adversity in the legal 

405
00:19:12,000 --> 00:19:14,680
ethics realm is a highly nuanced
concept. 

406
00:19:14,720 --> 00:19:17,520
It isn't just a simple equation 
of plaintiff versus defendant. 

407
00:19:17,680 --> 00:19:20,640
Right. 
ABA Opinion 497 provides a 

408
00:19:20,640 --> 00:19:24,800
fantastic taxonomy of material 
adversity, breaking it down into

409
00:19:24,800 --> 00:19:27,280
3 distinct categories. 
Let's go through them. 

410
00:19:27,480 --> 00:19:29,800
The first category is the most 
intuitive. 

411
00:19:29,800 --> 00:19:33,440
Being on the opposite side of a 
litigation or a transactional 

412
00:19:33,440 --> 00:19:35,160
negotiation. 
Very straightforward. 

413
00:19:35,320 --> 00:19:38,160
You cannot represent the husband
in a divorce and then three 

414
00:19:38,160 --> 00:19:41,680
years later represent the wife 
in a petition to modify the 

415
00:19:41,760 --> 00:19:44,240
alimony. 
Or represent a tech startup in 

416
00:19:44,240 --> 00:19:47,360
their initial public offering 
and then represent a hostile 

417
00:19:47,360 --> 00:19:50,640
private equity firm trying to 
execute a leveraged buyout of 

418
00:19:50,640 --> 00:19:52,880
that same startup. 
The adversity is direct, 

419
00:19:52,880 --> 00:19:56,080
structural and obvious. 
But the second category is 

420
00:19:56,080 --> 00:19:59,280
slightly more insidious. 
Attacking your own prior work. 

421
00:19:59,520 --> 00:20:02,840
Yes, this loops perfectly back 
to our Nebraska developer 

422
00:20:02,840 --> 00:20:05,880
example. 
You cannot draft a complex trust

423
00:20:05,880 --> 00:20:10,440
document for a wealthy patriarch
and then after he passes away, 

424
00:20:10,720 --> 00:20:14,880
represent a disgruntled heir 
seeking to have that exact same 

425
00:20:14,880 --> 00:20:18,800
trust declared invalid due to 
undue influence. 

426
00:20:18,840 --> 00:20:22,320
You are inherently taking an 
adverse position to the legal 

427
00:20:22,320 --> 00:20:24,840
architecture you are hired to 
build and secure. 

428
00:20:25,160 --> 00:20:27,720
You cannot burn down the house 
you were paid to construct. 

429
00:20:28,160 --> 00:20:31,440
I love that phrasing. 
Now, the third category of 

430
00:20:31,440 --> 00:20:33,920
material adversity. 
This one carries profound 

431
00:20:33,920 --> 00:20:36,400
psychological weight. 
Examining a former client in a 

432
00:20:36,400 --> 00:20:38,280
legal proceeding. 
Imagine you represented a 

433
00:20:38,280 --> 00:20:41,160
business owner in a quiet, 
confidential tax dispute with 

434
00:20:41,160 --> 00:20:43,360
the IRS. 
OK, very sensitive stuff. 

435
00:20:43,360 --> 00:20:46,160
Years later, you are 
representing a plaintiff in a 

436
00:20:46,160 --> 00:20:48,360
fraud lawsuit against a 
different company, and that 

437
00:20:48,360 --> 00:20:50,520
former client is called as a key
witness. 

438
00:20:50,600 --> 00:20:53,040
Oh wow. 
As an advocate, your job during 

439
00:20:53,040 --> 00:20:56,440
cross examination is to impeach 
their credibility, expose their 

440
00:20:56,440 --> 00:20:59,320
inconsistencies, and 
dramatically tear them down on 

441
00:20:59,320 --> 00:21:02,040
the stand. 
Which means you are inevitably 

442
00:21:02,040 --> 00:21:05,400
going to draw upon the 
psychological insights, the 

443
00:21:05,400 --> 00:21:08,440
nervous tics and the 
vulnerabilities you observe when

444
00:21:08,440 --> 00:21:10,840
they were sitting in your office
trusting you with their tax 

445
00:21:10,840 --> 00:21:13,160
secrets. 
Even if you don't use specific 

446
00:21:13,160 --> 00:21:15,840
confidential facts, you are 
using your intimate knowledge of

447
00:21:15,840 --> 00:21:18,000
their character to destroy them 
in public. 

448
00:21:18,080 --> 00:21:20,480
That is the zenith of material 
adversity. 

449
00:21:20,480 --> 00:21:23,800
It absolutely is, and ethics 
scholars are very careful to 

450
00:21:23,800 --> 00:21:25,320
draw a boundary here. 
How so? 

451
00:21:25,480 --> 00:21:29,880
Material adversity requires 
specific tangible legal or 

452
00:21:29,880 --> 00:21:33,280
economic harm. 
Simply taking a legal position 

453
00:21:33,280 --> 00:21:37,560
in one case that establishes A 
precedent that might indirectly 

454
00:21:37,560 --> 00:21:40,760
harm a former client's broad 
industry interests somewhere 

455
00:21:40,760 --> 00:21:42,360
down the line, that is not 
enough. 

456
00:21:42,480 --> 00:21:44,400
The collision has to be 
specific, right? 

457
00:21:44,600 --> 00:21:47,320
Let's test the limits of that 
adversity with a scenario that 

458
00:21:47,320 --> 00:21:49,640
keeps modern solo practitioners 
awake at night. 

459
00:21:49,680 --> 00:21:51,000
Oh, I know where you're going 
with this. 

460
00:21:51,000 --> 00:21:53,000
The vengeful client and in the 
Yelp review. 

461
00:21:53,000 --> 00:21:55,560
The absolute nightmare stereo. 
It is. 

462
00:21:55,840 --> 00:21:58,200
We are drawing from San 
Francisco Bar Association 

463
00:21:58,200 --> 00:22:01,640
opinion comma 14-1. 
But variations of this issue 

464
00:22:01,640 --> 00:22:04,240
plague every jurisdiction. 
Walk us through the setup. 

465
00:22:04,480 --> 00:22:07,880
An attorney represents a client 
in a messy, emotionally charged 

466
00:22:07,880 --> 00:22:11,600
family lock case. 
The outcome is poor, mostly due 

467
00:22:11,600 --> 00:22:14,000
to the client's own behavior. 
Naturally, the. 

468
00:22:14,000 --> 00:22:17,040
Representation ends. 
The former client goes home, 

469
00:22:17,680 --> 00:22:21,920
logs onto Avo, Yelp and Google 
reviews, and unleashes a torrent

470
00:22:21,920 --> 00:22:24,840
of public vitriol. 
They leave a scathing one star 

471
00:22:24,840 --> 00:22:27,160
review calling the attorney 
incompetent. 

472
00:22:27,160 --> 00:22:30,120
Claiming the attorney ignored 
their calls, mismanaged the 

473
00:22:30,120 --> 00:22:32,520
evidence, fundamentally botched 
the case. 

474
00:22:32,720 --> 00:22:35,760
But crucially, the client does 
not reveal any specific 

475
00:22:35,760 --> 00:22:39,080
confidential information, right?
And just engage in general 

476
00:22:39,120 --> 00:22:42,000
highly damaging mudslinging. 
But the attorney's livelihood 

477
00:22:42,000 --> 00:22:44,600
depends on their online 
reputation, which is now 

478
00:22:44,600 --> 00:22:47,920
actively bleeding. 
So the question is, how does the

479
00:22:47,920 --> 00:22:51,440
duty of confidentiality operate 
when the former client is the 

480
00:22:51,440 --> 00:22:54,120
one attacking? 
This scenario is the ultimate 

481
00:22:54,120 --> 00:22:56,240
stress test for the fiduciary 
duty. 

482
00:22:56,400 --> 00:22:59,200
It pits a human being's 
fundamental instinct for self 

483
00:22:59,200 --> 00:23:02,880
preservation against an ancient,
unyielding ethical mandate. 

484
00:23:03,080 --> 00:23:05,800
The San Francisco opinion relies
on the notoriously strict 

485
00:23:05,800 --> 00:23:08,320
California standard, 
specifically Business and 

486
00:23:08,320 --> 00:23:12,720
Professions Code section 6068 E.
The language of that statute is 

487
00:23:12,720 --> 00:23:15,360
almost poetic in its severity. 
What does it say? 

488
00:23:15,920 --> 00:23:19,120
It mandates that an attorney 
must maintain and violate the 

489
00:23:19,120 --> 00:23:22,600
confidence and at every peril to
himself or herself, to preserve 

490
00:23:22,600 --> 00:23:24,760
the secrets of his or her 
client. 

491
00:23:25,000 --> 00:23:28,840
At every peril to himself, the 
law is explicitly telling the 

492
00:23:28,840 --> 00:23:31,040
lawyer that they must absorb the
damage. 

493
00:23:31,040 --> 00:23:34,520
They must act as a human shield 
for the client's secrets, even 

494
00:23:34,520 --> 00:23:36,480
if it destroys their own 
reputation. 

495
00:23:36,560 --> 00:23:39,760
But wait, there's a recognized 
self-defense exception in the 

496
00:23:39,760 --> 00:23:42,000
model rules and an evidence law,
isn't there? 

497
00:23:42,120 --> 00:23:44,320
There is. 
If a client accuses an attorney 

498
00:23:44,320 --> 00:23:47,400
of malpractice, the attorney is 
allowed to use confidential 

499
00:23:47,400 --> 00:23:48,960
information to defend 
themselves. 

500
00:23:49,000 --> 00:23:51,840
They are, but the procedural 
context is everything. 

501
00:23:51,880 --> 00:23:53,960
The exception is incredibly 
narrow. 

502
00:23:54,080 --> 00:23:56,440
How narrow? 
It only triggers when there is a

503
00:23:56,440 --> 00:24:00,320
formal legal or disciplinary 
proceeding initiated against the

504
00:24:00,320 --> 00:24:02,760
attorney. 
OK, so if the former client 

505
00:24:02,760 --> 00:24:05,080
files a malpractice lawsuit in 
civil court? 

506
00:24:05,160 --> 00:24:08,240
Or, if they file a formal 
grievance with the State Bar 

507
00:24:08,240 --> 00:24:11,880
Disciplinary Committee, then the
attorney is absolutely allowed 

508
00:24:11,880 --> 00:24:13,920
to Pierce The Veil of 
confidentiality. 

509
00:24:14,160 --> 00:24:17,760
They can submit the private 
e-mail, the billing records and 

510
00:24:17,760 --> 00:24:21,000
the confidential memos to the 
judge or the committee to prove 

511
00:24:21,000 --> 00:24:22,920
they provided competent 
representation. 

512
00:24:23,000 --> 00:24:26,040
Because the rationale is that a 
client cannot use 

513
00:24:26,040 --> 00:24:29,440
confidentiality as a sword to 
attack the lawyer in court, 

514
00:24:29,640 --> 00:24:33,080
while simultaneously using it as
a shield to prevent the lawyer 

515
00:24:33,080 --> 00:24:36,440
from fighting back. 
That makes perfect sense, but a 

516
00:24:36,440 --> 00:24:38,320
Yelp review is not a court of 
law. 

517
00:24:38,400 --> 00:24:40,920
No, it is not. 
AVO is not a disciplinary 

518
00:24:40,920 --> 00:24:43,040
committee. 
The court of public opinion has 

519
00:24:43,040 --> 00:24:46,960
no judge, no rules of evidence 
and no protective orders to seal

520
00:24:46,960 --> 00:24:49,440
the documents. 
So if the attack happens purely 

521
00:24:49,440 --> 00:24:52,600
online, outside of a formal 
proceeding, the self-defense 

522
00:24:52,600 --> 00:24:54,880
exception never activates. 
Exactly. 

523
00:24:55,040 --> 00:24:58,520
The opinion makes it painfully 
clear the attorney cannot log 

524
00:24:58,520 --> 00:25:01,960
onto the review site and post a 
point by point rebuttal exposing

525
00:25:01,960 --> 00:25:04,520
the client secrets. 
They cannot say actually we lost

526
00:25:04,520 --> 00:25:07,080
because you hid assets in a, 
came in count and lied to the 

527
00:25:07,080 --> 00:25:09,440
judge. 
Revealing the details of the 

528
00:25:09,440 --> 00:25:13,080
representation to save face 
online is a direct violation of 

529
00:25:13,080 --> 00:25:15,560
Rule 1.9 C. 
Which means the attorney just 

530
00:25:15,560 --> 00:25:16,880
has to sit there and take the 
beating. 

531
00:25:17,080 --> 00:25:20,080
Well, they're not entirely 
defenseless, but their response 

532
00:25:20,080 --> 00:25:23,200
must be incredibly constrained. 
What can they actually do? 

533
00:25:23,440 --> 00:25:26,640
They're permitted to post a 
general proportionate reply. 

534
00:25:27,440 --> 00:25:29,720
They can state that they 
fundamentally disagree with the 

535
00:25:29,720 --> 00:25:32,720
factual assertions in the 
review, and they can explicitly 

536
00:25:32,720 --> 00:25:35,440
note that their ethical 
obligations regarding client 

537
00:25:35,440 --> 00:25:39,080
confidentiality prevent them 
from discussing the specifics of

538
00:25:39,080 --> 00:25:41,520
the case in a public forum. 
That's pretty smart. 

539
00:25:41,760 --> 00:25:45,080
Any prospective client reading 
that response will usually read 

540
00:25:45,080 --> 00:25:47,720
between the lines and understand
that the lawyer is taking the 

541
00:25:47,720 --> 00:25:48,920
High Road. 
Exactly. 

542
00:25:49,520 --> 00:25:52,240
But the substantive secrets of 
the case remain locked away. 

543
00:25:52,640 --> 00:25:56,600
This is a highly testable area 
because examiners love to pit 

544
00:25:56,600 --> 00:25:59,200
raw human emotion against rigid 
doctrine. 

545
00:25:59,200 --> 00:26:01,880
Oh, they love it. 
The exam trap is creating a 

546
00:26:01,880 --> 00:26:06,280
scenario where the client's 
public lies are so egregious and

547
00:26:06,280 --> 00:26:09,960
the damage to the lawyer is so 
severe that the student feels 

548
00:26:09,960 --> 00:26:12,920
morally compelled to let the 
lawyer defend themselves in the 

549
00:26:12,920 --> 00:26:14,800
press. 
You must resist that urge. 

550
00:26:15,080 --> 00:26:18,840
You really must The duty of 
confidentiality survives the 

551
00:26:18,840 --> 00:26:22,640
representation, it survives the 
information becoming public, and

552
00:26:22,640 --> 00:26:25,360
it survives the former clients 
unprovoked hostility. 

553
00:26:25,360 --> 00:26:28,560
So we have thoroughly mapped how
the contagion operates within 

554
00:26:28,560 --> 00:26:30,920
patient zero. 
We understand the objective 

555
00:26:30,920 --> 00:26:33,960
presumptions and the strict 
limitations on adversity. 

556
00:26:34,400 --> 00:26:37,400
But the modern practice of law 
rarely involves solitary 

557
00:26:37,400 --> 00:26:39,360
practitioners working in 
isolation. 

558
00:26:39,360 --> 00:26:42,480
Right attorneys operate within 
complex ecosystems. 

559
00:26:42,960 --> 00:26:46,040
Law firms, Corporate legal 
departments, massive global 

560
00:26:46,040 --> 00:26:48,520
partnerships. 
Which requires us to pivot to 

561
00:26:48,520 --> 00:26:52,880
the second major regulatory 
framework, imputation under Rule

562
00:26:52,880 --> 00:26:54,720
1.10. 
We have to examine how the 

563
00:26:54,720 --> 00:26:57,280
contagion spreads. 
If one attorney in a firm is 

564
00:26:57,280 --> 00:27:00,560
disqualified under Rule 1.9 
because they possess a former 

565
00:27:00,560 --> 00:27:03,600
client secrets, what happens to 
the attorney in the office next 

566
00:27:03,600 --> 00:27:04,720
door? 
Well, the foundational 

567
00:27:04,720 --> 00:27:07,640
assumption of Rule 1.10 is 
deeply pragmatic. 

568
00:27:07,920 --> 00:27:10,960
It assumes that a law firm is 
essentially a single Organism. 

569
00:27:11,480 --> 00:27:14,240
The rules presume that attorneys
within a firm share a common 

570
00:27:14,280 --> 00:27:17,160
economic interest in the firm's 
overall financial success. 

571
00:27:17,400 --> 00:27:21,120
They share access to the same 
cloud based document management 

572
00:27:21,120 --> 00:27:23,280
systems. 
They share paralegals and 

573
00:27:23,280 --> 00:27:25,560
support staff. 
And, crucially, they talk. 

574
00:27:25,680 --> 00:27:27,720
They do. 
They discuss legal strategies 

575
00:27:27,720 --> 00:27:29,600
over coffee. 
They bounce ideas around the 

576
00:27:29,600 --> 00:27:31,560
conference room. 
Because of this inherent 

577
00:27:31,560 --> 00:27:34,920
interconnectedness, roll one 
point SAT establishes A harsh 

578
00:27:34,920 --> 00:27:38,720
default baseline. 
And that baseline is if one 

579
00:27:38,720 --> 00:27:42,600
lawyer in a firm is conflicted 
out of a matter, that conflict 

580
00:27:42,600 --> 00:27:46,120
is automatically imputed to 
every single other lawyer in the

581
00:27:46,120 --> 00:27:47,720
firm. 
One infected attorney 

582
00:27:47,720 --> 00:27:52,000
quarantines the entire building.
It's brutal, yeah, But you know,

583
00:27:52,000 --> 00:27:54,960
the regulatory bodies recognize 
that applying this rule with 

584
00:27:54,960 --> 00:27:58,560
unqualified rigor would grind 
the legal economy to a halt. 

585
00:27:58,560 --> 00:28:01,600
Absolutely. 
If a firm of 2000 lawyers across

586
00:28:01,600 --> 00:28:04,560
20 cities was completely 
disqualified every time a single

587
00:28:04,560 --> 00:28:08,160
associate had a tangential 
conflict from a previous job, no

588
00:28:08,360 --> 00:28:11,840
could ever take a new case. 
Therefore, Rule 1.10 carves out 

589
00:28:11,840 --> 00:28:14,840
essential exceptions. 
And the first vital carve out is

590
00:28:14,840 --> 00:28:18,440
the personal interest exception.
This exception requires us to 

591
00:28:18,440 --> 00:28:21,640
differentiate between conflicts 
rooted in confidential client 

592
00:28:21,640 --> 00:28:24,920
data and conflicts rooted in an 
attorney's personal life. 

593
00:28:25,160 --> 00:28:27,360
Give us an example. 
OK, let's say I am an 

594
00:28:27,360 --> 00:28:31,240
environmental activist. 
I have deeply held foundational 

595
00:28:31,240 --> 00:28:34,440
moral beliefs against clear 
cutting ancient forests. 

596
00:28:34,440 --> 00:28:36,880
Noble cause. 
My firm is approached by a 

597
00:28:36,880 --> 00:28:41,400
massive temper conglomerate to 
defend them against the EPAI. 

598
00:28:41,400 --> 00:28:44,800
Know in my heart that my 
personal disgust for the 

599
00:28:44,800 --> 00:28:47,920
client's business would 
materially limit my ability to 

600
00:28:47,920 --> 00:28:51,720
represent them zealously. 
So under Rule 1.7 you have a 

601
00:28:51,720 --> 00:28:54,920
concurrent conflict of interest.
Right, I am personally 

602
00:28:54,920 --> 00:28:58,800
disqualified, but does my 
ideological objection infect my 

603
00:28:58,800 --> 00:29:01,320
partners? 
It does not, provided we meet a 

604
00:29:01,320 --> 00:29:03,400
specific condition. 
What's the condition? 

605
00:29:03,720 --> 00:29:06,760
The rule states that if a 
conflict is purely personal to 

606
00:29:06,760 --> 00:29:09,600
the disqualified lawyer and it 
does not present a significant 

607
00:29:09,600 --> 00:29:13,040
risk of materially limiting the 
representation of the client by 

608
00:29:13,040 --> 00:29:14,560
the remaining lawyers in the 
firm. 

609
00:29:14,560 --> 00:29:16,200
Then the conflict is not 
imputed. 

610
00:29:16,280 --> 00:29:18,880
Right, so assuming your 
environmental activism doesn't 

611
00:29:18,880 --> 00:29:21,760
create a toxic environment that 
coerces or distracts your 

612
00:29:21,760 --> 00:29:25,120
partners, they are free to take 
the timber company's money and 

613
00:29:25,120 --> 00:29:27,960
defend the case. 
Another classic, highly testable

614
00:29:27,960 --> 00:29:30,400
example of a personal conflict 
is marriage. 

615
00:29:30,400 --> 00:29:32,440
Oh, family dynamics. 
Always a mess. 

616
00:29:33,280 --> 00:29:36,440
Let's say a senior litigator at 
my firm is married to the lead 

617
00:29:36,440 --> 00:29:38,640
prosecutor at the district 
attorney's office. 

618
00:29:38,760 --> 00:29:41,800
OK, high-powered couple. 
If our firm takes on a criminal 

619
00:29:41,800 --> 00:29:45,880
defense case prosecuted by that 
specific spouse, our litigator 

620
00:29:45,880 --> 00:29:49,160
is obviously conflicted out. 
You cannot have spouses fighting

621
00:29:49,160 --> 00:29:51,560
each other in front of a jury 
while sharing a bank account at 

622
00:29:51,560 --> 00:29:53,600
home. 
But did that marital conflict 

623
00:29:53,600 --> 00:29:57,000
mean our entire defense firm is 
barred from taking cases against

624
00:29:57,000 --> 00:29:59,760
the DA's office? 
No, the marital conflict is 

625
00:29:59,760 --> 00:30:02,480
inherently personal. 
As long as the conflicted spouse

626
00:30:02,480 --> 00:30:05,640
is isolated from the case, the 
rest of the firm can proceed. 

627
00:30:06,200 --> 00:30:09,440
So personal interest exceptions 
are relatively straightforward. 

628
00:30:10,320 --> 00:30:13,280
The D imputation analysis 
becomes exponentially more 

629
00:30:13,280 --> 00:30:16,520
complicated when we look at the 
modern reality of corporate law 

630
00:30:16,680 --> 00:30:19,320
in in house counsel. 
Yes, we have a phenomenal 

631
00:30:19,320 --> 00:30:24,000
resource here in California, 
Opinion 2190003, which explores 

632
00:30:24,000 --> 00:30:27,800
how the contagion operates when 
a lawyer's firm is actually a 

633
00:30:27,800 --> 00:30:30,880
corporate legal department. 
The in house counsel mobility 

634
00:30:30,880 --> 00:30:33,600
issue is fascinating because it 
happens constantly in the tech 

635
00:30:33,600 --> 00:30:34,760
sector. 
Let's walk through a 

636
00:30:34,760 --> 00:30:36,880
hypothetical based on that 
California opinion. 

637
00:30:37,160 --> 00:30:40,600
All right, imagine a high level 
attorney who serves as deputy 

638
00:30:40,600 --> 00:30:43,120
general counsel for Apple. 
They have a brilliant career 

639
00:30:43,120 --> 00:30:44,920
there but eventually they are 
poached. 

640
00:30:45,240 --> 00:30:47,440
Naturally. 
They leave Apple and accept a 

641
00:30:47,440 --> 00:30:51,600
lucrative position in the legal 
department at Samsung, a direct,

642
00:30:51,720 --> 00:30:55,120
fierce economic competitor. 
And Apple's outside counsel 

643
00:30:55,360 --> 00:30:58,840
immediately screams conflict. 
They argue that because the 

644
00:30:58,840 --> 00:31:02,000
attorney moved to a direct 
competitor, the entire Samsung 

645
00:31:02,000 --> 00:31:04,400
legal department is now 
contaminated with Apple's 

646
00:31:04,400 --> 00:31:07,680
secrets and must be disqualified
from any litigation against 

647
00:31:07,680 --> 00:31:09,600
Apple. 
The instinct is understandable, 

648
00:31:09,600 --> 00:31:13,000
but the California opinion 
carefully deconstructs why that 

649
00:31:13,000 --> 00:31:16,280
argument fails. 1st we have to 
define who the former client 

650
00:31:16,280 --> 00:31:18,240
actually is in the corporate 
context. 

651
00:31:18,240 --> 00:31:20,800
The former client is the old 
employer Apple. 

652
00:31:21,000 --> 00:31:22,960
Right. 
Simply moving to an economic 

653
00:31:22,960 --> 00:31:26,680
competitor does not, in a 
vacuum, trigger a Rule 1.9 

654
00:31:26,680 --> 00:31:29,400
conflict. 
Economic rivalry is not a legal 

655
00:31:29,400 --> 00:31:31,480
conflict. 
The conflict only crystallizes 

656
00:31:31,480 --> 00:31:34,000
if the moving attorney 
personally represented the old 

657
00:31:34,000 --> 00:31:37,680
company on a matter that is 
factually and legally identical 

658
00:31:37,800 --> 00:31:40,680
or substantially related to a 
specific new matter at the new 

659
00:31:40,680 --> 00:31:43,120
company. 
Or if they acquired material 

660
00:31:43,120 --> 00:31:45,960
confidential information 
regarding that exact dispute. 

661
00:31:46,240 --> 00:31:49,120
So the scope of their previous 
portfolio is the determining 

662
00:31:49,120 --> 00:31:50,320
factor. 
Explain that. 

663
00:31:51,000 --> 00:31:54,520
Well, if the attorney who moved 
from Apple to Samsung was 

664
00:31:54,520 --> 00:31:58,080
strictly an employment lawyer. 
If they spent 10 years doing 

665
00:31:58,080 --> 00:32:01,040
nothing but negotiating 
severance packages and defending

666
00:32:01,040 --> 00:32:04,840
wrongful termination claims for 
HR, they never gained 

667
00:32:04,840 --> 00:32:08,360
confidential insight into 
Apple's semiconductor patent 

668
00:32:08,360 --> 00:32:11,120
prosecution strategy. 
Because they don't possess the 

669
00:32:11,120 --> 00:32:13,520
relevant secrets, they are not. 
Infected. 

670
00:32:13,680 --> 00:32:16,480
Therefore, they wouldn't be 
conflicted out of handling a 

671
00:32:16,480 --> 00:32:19,840
patent infringement lawsuit 
against Apple for Samsung, and 

672
00:32:19,840 --> 00:32:23,240
there is no conflict to impute 
to the rest of Samsung's legal 

673
00:32:23,240 --> 00:32:25,560
department. 
However, the analysis pivots 

674
00:32:25,560 --> 00:32:28,880
sharply if the moving attorney 
was involved in strategic high 

675
00:32:28,880 --> 00:32:30,040
level litigation. 
Right. 

676
00:32:30,240 --> 00:32:32,720
If that attorney was part of the
brain trust that developed 

677
00:32:32,720 --> 00:32:35,600
Apple's global intellectual 
property defense playbook, 

678
00:32:36,120 --> 00:32:39,080
they're carrying highly toxic 
material confidences. 

679
00:32:39,160 --> 00:32:42,920
And if Samsung then tasks their 
legal department with suing 

680
00:32:42,920 --> 00:32:46,200
Apple over those exact patents? 
That specific attorney is 

681
00:32:46,200 --> 00:32:48,640
personally disqualified under 
Rule 1.9. 

682
00:32:48,800 --> 00:32:52,080
And because a corporate legal 
department is treated as a firm 

683
00:32:52,080 --> 00:32:55,160
under the rules, that 
disqualification would by 

684
00:32:55,160 --> 00:32:59,000
default impute to the entire 
Samsung legal apparatus. 

685
00:32:59,000 --> 00:33:00,920
Which would be catastrophic for 
Samsung. 

686
00:33:01,400 --> 00:33:04,720
Unless, of course, they utilize 
the ultimate defense mechanism 

687
00:33:04,720 --> 00:33:06,240
to break the chain of 
imputation. 

688
00:33:06,800 --> 00:33:10,360
Ah yes, and this is where we 
enter the most heavily litigated

689
00:33:10,360 --> 00:33:13,760
and frequently tested area of 
professional responsibility. 

690
00:33:13,760 --> 00:33:17,760
We are looking at the laterally 
moving lawyer and the mechanics 

691
00:33:17,760 --> 00:33:21,160
of the ethical screen codified 
in Rule 1.0. 

692
00:33:21,160 --> 00:33:23,440
A 2. 
The modern legal market thrives 

693
00:33:23,440 --> 00:33:25,800
on mobility. 
Associates move for better 

694
00:33:25,800 --> 00:33:28,040
bonuses. 
Partners move to expand their 

695
00:33:28,040 --> 00:33:30,240
book of business. 
If imputation applied, 

696
00:33:30,240 --> 00:33:32,840
absolutely. 
A lawyer who worked on a massive

697
00:33:32,880 --> 00:33:36,760
antitrust case at Firm A could 
never move to Firm B if Firm B 

698
00:33:36,760 --> 00:33:39,160
represented the embossing. 
The lawyer would be an 

699
00:33:39,160 --> 00:33:40,640
unemployable pariah. 
Right. 

700
00:33:40,760 --> 00:33:43,520
So to prevent this radical 
curtailment of professional 

701
00:33:43,520 --> 00:33:47,440
mobility, the model rules allow 
a firm to hire a tainted lawyer 

702
00:33:47,440 --> 00:33:49,680
without disqualifying the entire
office and. 

703
00:33:49,680 --> 00:33:52,640
Provided they construct an 
impenetrable ethical screen, 

704
00:33:52,640 --> 00:33:54,880
historically referred to as a 
Chinese wall. 

705
00:33:55,040 --> 00:33:57,560
But building that screen isn't 
just about sending a polite 

706
00:33:57,560 --> 00:33:59,520
e-mail asking everyone to play 
nice. 

707
00:33:59,560 --> 00:34:04,520
Not at all. 
Rule 1.10 A 2 establishes 3 

708
00:34:04,520 --> 00:34:08,520
mandatory mechanical conditions 
that must be perfectly executed 

709
00:34:08,520 --> 00:34:10,880
to survive a disqualification 
motion. 

710
00:34:11,280 --> 00:34:14,199
I tell students to memorize 
these three conditions because 

711
00:34:14,199 --> 00:34:17,040
examiners will test every single
nuance. 

712
00:34:17,040 --> 00:34:19,600
Let's Hickam, the first 
condition is that the screening 

713
00:34:19,600 --> 00:34:22,920
must be timely and effective. 
Now, what does effective 

714
00:34:22,920 --> 00:34:25,239
isolation actually look like in 
a modern law firm? 

715
00:34:25,480 --> 00:34:29,639
We can look to the landmark case
Kirky V First American Title for

716
00:34:29,639 --> 00:34:32,040
the blueprint of an effective 
screen it requires. 

717
00:34:32,040 --> 00:34:34,679
Multiple layers of verifiable 
isolation. 

718
00:34:34,760 --> 00:34:36,840
First, there must be physical 
separation. 

719
00:34:37,360 --> 00:34:40,199
The tainted lawyer cannot have 
an office next to the team 

720
00:34:40,199 --> 00:34:42,840
handling the conflicted matter. 
They should ideally be on a 

721
00:34:42,840 --> 00:34:45,840
different floor or in a 
different building. 2nd, and 

722
00:34:45,840 --> 00:34:48,880
increasingly more critical, 
there must be absolute digital 

723
00:34:48,880 --> 00:34:51,480
isolation. 
The firm's IT department must 

724
00:34:51,480 --> 00:34:54,400
erect firewalls within the 
document management system. 

725
00:34:54,600 --> 00:34:57,680
The screen lawyer's credentials 
must be explicitly locked out of

726
00:34:57,680 --> 00:35:00,960
any folder, database, or billing
record associated with the case.

727
00:35:01,240 --> 00:35:04,480
If they search for the clients 
name on the firms intranet it 

728
00:35:04,480 --> 00:35:07,720
should return 0 results. 
Finally, there must be 

729
00:35:07,720 --> 00:35:11,480
institutional enforcement. 
The firm must circulate explicit

730
00:35:11,480 --> 00:35:15,920
memoranda to all personnel, 
partners, associates, paralegals

731
00:35:16,120 --> 00:35:19,200
and administrative staff. 
Forbidding them from discussing 

732
00:35:19,200 --> 00:35:20,880
the matter with the screened 
lawyer. 

733
00:35:20,960 --> 00:35:24,480
And the most important word in 
that first condition is timely. 

734
00:35:25,080 --> 00:35:28,880
Yes, you cannot hire the 
attorney, wait three months for 

735
00:35:28,880 --> 00:35:31,960
the opposing counsel to discover
the conflict and file a motion 

736
00:35:31,960 --> 00:35:34,560
to disqualify and then build the
wall. 

737
00:35:34,680 --> 00:35:38,360
The screen must be erected 
before or at the exact moment 

738
00:35:38,560 --> 00:35:41,320
the tainted lawyer walks through
the door on their first day. 

739
00:35:41,920 --> 00:35:45,040
If the contagion is allowed to 
breathe the open air of the firm

740
00:35:45,040 --> 00:35:48,120
for even a single afternoon, the
presumption of shared 

741
00:35:48,120 --> 00:35:51,480
confidences locks in and the 
screen is useless. 

742
00:35:51,640 --> 00:35:53,960
Punctuality is unforgiving in 
this context. 

743
00:35:53,960 --> 00:35:56,000
So what's the second mandatory 
condition? 

744
00:35:56,280 --> 00:35:58,040
It focuses on the financial 
incentives. 

745
00:35:58,560 --> 00:36:01,040
There can be no fee sharing. 
The screened lawyer cannot 

746
00:36:01,040 --> 00:36:04,280
receive any portion of the fee 
generated by the conflicted 

747
00:36:04,280 --> 00:36:06,120
matter. 
Now, this requires some 

748
00:36:06,120 --> 00:36:08,720
practical clarification. 
Doesn't mean the lawyer works 

749
00:36:08,720 --> 00:36:10,760
for free. 
They can still receive their 

750
00:36:10,760 --> 00:36:13,520
predetermined fixed annual 
salary. 

751
00:36:14,000 --> 00:36:17,160
If they are a partner, they can 
still receive their standard 

752
00:36:17,320 --> 00:36:21,400
baseline partnership draw based 
on the overall profitability of 

753
00:36:21,400 --> 00:36:23,800
the firm. 
What the rule prohibits is a 

754
00:36:23,800 --> 00:36:27,320
direct, traceable financial 
reward tied to the outcome of 

755
00:36:27,320 --> 00:36:31,160
the case they are isolated from.
They cannot receive a specific 

756
00:36:31,160 --> 00:36:34,240
performance bonus or a 
percentage cut of the 

757
00:36:34,240 --> 00:36:37,200
contingency fee. 
One in the conflicted matter. 

758
00:36:37,240 --> 00:36:40,240
The goal is to remove any 
subconscious financial 

759
00:36:40,240 --> 00:36:43,160
temptation the lawyer might have
to secretly pass a note under 

760
00:36:43,160 --> 00:36:45,080
the door to help their new firm 
win. 

761
00:36:45,240 --> 00:36:47,520
Follow the money. 
It is a reliable metric for 

762
00:36:47,520 --> 00:36:49,560
ethical compliance. 
And the third and final 

763
00:36:49,560 --> 00:36:52,720
mandatory condition. 
Prompt written notice to the 

764
00:36:52,720 --> 00:36:55,800
affected former client. 
The firm must send a formal 

765
00:36:55,800 --> 00:36:58,600
communication to the former 
client detailing the exact 

766
00:36:58,600 --> 00:37:01,000
conflict. 
Outlining the specific screening

767
00:37:01,000 --> 00:37:02,560
procedures that have been 
implemented. 

768
00:37:02,840 --> 00:37:05,760
Providing sworn certifications 
of compliance from both the 

769
00:37:05,760 --> 00:37:08,160
screened lawyer and the firm's 
management. 

770
00:37:08,240 --> 00:37:11,040
And agreeing to respond to any 
reasonable inquiries from the 

771
00:37:11,040 --> 00:37:13,640
former client regarding the 
integrity of the screen. 

772
00:37:14,040 --> 00:37:17,360
Now I want to aggressively 
underline a distinction here for

773
00:37:17,360 --> 00:37:20,280
anyone taking an exam. 
Oh, this is a huge trap the. 

774
00:37:20,280 --> 00:37:23,320
Requirement is notice, it is not
consent. 

775
00:37:23,440 --> 00:37:26,160
The hiring firm does not have to
ask the former client for 

776
00:37:26,160 --> 00:37:28,000
permission to implement the 
screen. 

777
00:37:28,120 --> 00:37:30,880
They simply have to inform them 
that it is happening, giving the

778
00:37:30,880 --> 00:37:34,000
former client enough 
transparency to verify that the 

779
00:37:34,000 --> 00:37:37,000
quarantine is real. 
That distinction represents a 

780
00:37:37,000 --> 00:37:40,640
massive policy compromise. 
Explain the policy behind it. 

781
00:37:40,760 --> 00:37:44,480
If the rules required the former
client's consent, the former 

782
00:37:44,480 --> 00:37:47,680
client would hold absolute veto 
power over their former 

783
00:37:47,680 --> 00:37:50,600
attorney's career. 
They could simply refuse out of 

784
00:37:50,600 --> 00:37:52,760
spite, making the attorney 
unhireable. 

785
00:37:52,840 --> 00:37:55,920
The notice requirement balances 
the former client's right to 

786
00:37:55,920 --> 00:37:58,960
know their secrets are protected
with the attorney's right to 

787
00:37:58,960 --> 00:38:01,600
participate in the free market 
of legal talent. 

788
00:38:01,920 --> 00:38:03,920
That is the policy 
justification, but I want to 

789
00:38:03,920 --> 00:38:06,840
challenge this from the 
perspective of a civilian, a non

790
00:38:06,840 --> 00:38:08,880
lawyer. 
Put on your former client hat. 

791
00:38:09,080 --> 00:38:10,880
OK, let's say I am the former 
client. 

792
00:38:11,320 --> 00:38:15,640
Few years ago, I sat in the room
with this attorney and confessed

793
00:38:15,640 --> 00:38:19,800
my deepest, most devastating 
financial vulnerabilities so 

794
00:38:19,800 --> 00:38:21,240
they could defend me. 
Right. 

795
00:38:21,520 --> 00:38:26,200
Now I am being sued by a massive
corporate law firm and I find 

796
00:38:26,200 --> 00:38:29,240
out that my former attorney just
took a lucrative partnership at 

797
00:38:29,240 --> 00:38:31,440
that exact firm. 
You're not going to like that. 

798
00:38:31,440 --> 00:38:33,640
No, no. 
You can send me all the sworn 

799
00:38:33,640 --> 00:38:36,240
certifications you want. 
You can tell me about the IT 

800
00:38:36,240 --> 00:38:38,160
firewalls and the different 
floors. 

801
00:38:38,160 --> 00:38:40,880
The reality is. 
The person holding the blueprint

802
00:38:41,320 --> 00:38:44,960
to my destruction is riding the 
elevator and eating in the 

803
00:38:44,960 --> 00:38:48,040
cafeteria with the lawyers 
actively trying to destroy me. 

804
00:38:48,560 --> 00:38:50,960
Regardless of the technical 
mechanics, doesn't that 

805
00:38:50,960 --> 00:38:52,920
inherently look corrupt to the 
general public? 

806
00:38:52,920 --> 00:38:53,640
Well. 
It really does. 

807
00:38:53,840 --> 00:38:56,360
Well, you have just articulated 
the fault line of the most 

808
00:38:56,360 --> 00:38:59,520
profound jurisdictional split in
the realm of professional 

809
00:38:59,520 --> 00:39:02,600
responsibility. 
The appearance of impropriety. 

810
00:39:02,600 --> 00:39:06,120
Yes, and how a state Supreme 
Court weighs that subjective 

811
00:39:06,120 --> 00:39:09,360
appearance against the objective
mechanics of a screen dictates 

812
00:39:09,360 --> 00:39:12,280
entirely whether lateral 
screening is permitted in that 

813
00:39:12,280 --> 00:39:14,640
jurisdiction. 
We have to explore this split 

814
00:39:14,640 --> 00:39:17,880
deeply because depending on what
state you intend to practice in 

815
00:39:18,000 --> 00:39:21,960
or what states law and exam 
question applies, the exact same

816
00:39:21,960 --> 00:39:25,160
fact pattern will yield 2 
completely opposite results. 

817
00:39:25,280 --> 00:39:29,040
Precisely the legal landscape is
divided into two main camps. 

818
00:39:29,240 --> 00:39:32,280
The first camp follows the 
majority or modern rule. 

819
00:39:32,280 --> 00:39:34,920
This includes jurisdictions that
have fully adopted the updated 

820
00:39:34,920 --> 00:39:37,400
ABA Model Rules. 
These states accept the 

821
00:39:37,400 --> 00:39:40,720
mechanical reality of Rule 1.10 
A 2. 

822
00:39:41,240 --> 00:39:44,800
They believe that if a firm 
implements A timely, verifiable,

823
00:39:44,800 --> 00:39:48,240
airtight ethical screen, the 
risk of the contagion spreading 

824
00:39:48,240 --> 00:39:51,040
is empirically neutralized. 
They have made a calculated 

825
00:39:51,120 --> 00:39:53,160
policy decision. 
The concrete benefits of 

826
00:39:53,160 --> 00:39:56,000
promoting lawyer mobility, 
allowing clients or free choice 

827
00:39:56,000 --> 00:39:58,840
of counsel, and preventing 
disqualification motions from 

828
00:39:58,840 --> 00:40:01,600
being used as tactical 
harassment outweigh the abstract

829
00:40:01,600 --> 00:40:04,840
theoretical fear that it simply 
looks bad to the public. 

830
00:40:05,040 --> 00:40:07,880
But there's a very vocal, very 
stubborn second camp. 

831
00:40:07,880 --> 00:40:11,240
Yes, the jurisdictions adhering 
to the stricter historical rule.

832
00:40:11,240 --> 00:40:14,560
These states outright reject the
concept of ethical screening for

833
00:40:14,560 --> 00:40:17,800
private firm lateral moves. 
They cling to a near absolute 

834
00:40:17,800 --> 00:40:21,520
rule of firm wide imputation and
their philosophy if he aligns 

835
00:40:21,520 --> 00:40:24,280
perfectly with your hypothetical
clients paranoia. 

836
00:40:24,360 --> 00:40:27,320
You can never guarantee a screen
is 100% effective. 

837
00:40:27,720 --> 00:40:30,520
Human beings gossip. 
Mistakes happen. 

838
00:40:30,760 --> 00:40:33,480
And more importantly, the 
bedrock of the legal system is 

839
00:40:33,480 --> 00:40:35,600
the public's confidence in its 
integrity. 

840
00:40:35,960 --> 00:40:39,000
If the public believes the 
system is rigged, the system 

841
00:40:39,000 --> 00:40:41,560
fails. 
We have an extraordinary case 

842
00:40:41,560 --> 00:40:44,080
study in our sources that 
illustrates the devastating 

843
00:40:44,080 --> 00:40:46,920
power of this stricter rule. 
The Tennessee Supreme Court 

844
00:40:46,920 --> 00:40:49,840
case. 
Clonard V Blackwood The 

845
00:40:49,840 --> 00:40:53,240
narrative of this case reads 
like a legal thriller, and it is

846
00:40:53,240 --> 00:40:56,320
the absolute poster child for 
the appearance of impropriety. 

847
00:40:56,320 --> 00:40:58,760
Standard. 
Walk us through the timeline of 

848
00:40:58,760 --> 00:41:00,760
this disaster. 
The timeline is everything. 

849
00:41:00,800 --> 00:41:02,480
Yeah. 
The saga begins with a highly 

850
00:41:02,480 --> 00:41:04,520
respected attorney named Macklin
Davis. 

851
00:41:04,800 --> 00:41:07,640
Davis is a senior partner at a 
prominent firm called Waller. 

852
00:41:07,720 --> 00:41:10,160
OK, Davis at Waller. 
During his tenure at Waller, 

853
00:41:10,160 --> 00:41:13,000
Davis represents the Blackwood 
family in various corporate and 

854
00:41:13,000 --> 00:41:15,440
personal matters. 
He builds a deep relationship of

855
00:41:15,440 --> 00:41:17,840
trust with them. 
Eventually, Davis decides to 

856
00:41:17,840 --> 00:41:21,280
leave the Waller firm and join a
different practice, the Baker 

857
00:41:21,280 --> 00:41:23,440
Firm. 
OK, so Davis is now at the Baker

858
00:41:23,440 --> 00:41:27,160
firm, The Blackwoods. 
His loyal clients follow him 

859
00:41:27,160 --> 00:41:28,840
there. 
While at the Baker firm, the 

860
00:41:28,840 --> 00:41:32,240
Blackwoods find themselves 
embroiled in a bitter, complex 

861
00:41:32,240 --> 00:41:34,800
boundary dispute against a 
neighboring family, the 

862
00:41:34,800 --> 00:41:37,280
Clinards. 
The Blackwoods hire Davis to 

863
00:41:37,280 --> 00:41:39,920
defend them. 
Davis dives into the case. 

864
00:41:40,160 --> 00:41:43,160
He learns every single 
confidential detail regarding 

865
00:41:43,160 --> 00:41:46,520
the Blackwoods land, their 
strategy and their bottom line 

866
00:41:46,520 --> 00:41:49,080
in the litigation. 
He is fully infected with their 

867
00:41:49,080 --> 00:41:51,720
secrets. 
But then procedural reality 

868
00:41:51,720 --> 00:41:54,800
intervenes. 
Davis discovers a separate, 

869
00:41:54,920 --> 00:41:58,280
unrelated conflict of interest 
that forces him to withdraw from

870
00:41:58,280 --> 00:42:00,600
representing the Blackwoods in 
the boundary dispute. 

871
00:42:00,640 --> 00:42:03,280
The Blackwoods are forced to 
hire brand new counsel to defend

872
00:42:03,280 --> 00:42:06,000
them. 
Meanwhile, the Clinards, the 

873
00:42:06,000 --> 00:42:08,400
plaintiffs suing the Blackwoods,
need a law firm. 

874
00:42:08,760 --> 00:42:11,240
And who do they hire? 
They hired Davis's Old Firm, 

875
00:42:11,320 --> 00:42:13,120
Waller. 
Let's pause and check the board.

876
00:42:13,360 --> 00:42:15,920
The Waller firm is actively 
prosecuting a lawsuit against 

877
00:42:15,920 --> 00:42:18,400
the Blackwoods. 
Macklin Davis, the man who knows

878
00:42:18,400 --> 00:42:21,600
all the Blackwoods secrets 
regarding this exact lawsuit, is

879
00:42:21,600 --> 00:42:24,000
safely across town working at 
the Baker firm. 

880
00:42:24,000 --> 00:42:26,920
There is no conflict, yet the 
contagion is isolated. 

881
00:42:27,080 --> 00:42:29,200
But then the lateral move 
happens. 

882
00:42:29,400 --> 00:42:31,600
Davis decides he wants to go 
back to his roots. 

883
00:42:31,920 --> 00:42:34,280
He leaves the Baker firm and 
returns to Waller. 

884
00:42:34,320 --> 00:42:38,560
He walks back into the very firm
that is actively prosecuting his

885
00:42:38,560 --> 00:42:42,680
former clients, the Blackwoods, 
in the exact same boundary 

886
00:42:42,680 --> 00:42:44,240
dispute he used to defend them 
in. 

887
00:42:44,640 --> 00:42:48,920
The Tennessee Supreme Court used
a brilliant baseball metaphor to

888
00:42:48,920 --> 00:42:51,040
describe this. 
Oh I love this quote. 

889
00:42:51,080 --> 00:42:54,400
They said Davis didn't just 
switch teams, he switched teams 

890
00:42:54,400 --> 00:42:57,080
in the middle of the game after 
spending the first few innings 

891
00:42:57,080 --> 00:43:00,400
in the opposing dugout learning 
all of their secrets, signs and 

892
00:43:00,400 --> 00:43:03,160
strategies. 
It is an incredibly aggressive 

893
00:43:03,160 --> 00:43:06,160
lateral move. 
Now, to their immense credit, 

894
00:43:06,440 --> 00:43:09,120
the Waller firm recognized the 
radioactive nature of this 

895
00:43:09,120 --> 00:43:10,320
conflict. 
They did not ignore. 

896
00:43:10,320 --> 00:43:15,000
It no they implemented a massive
textbook ethical screen before 

897
00:43:15,000 --> 00:43:16,880
Davis ever set foot back in the 
building. 

898
00:43:16,960 --> 00:43:19,880
They circulated explicit 
memorandums forbidding any 

899
00:43:19,880 --> 00:43:22,640
attorney or staff member from 
discussing the Clinard V 

900
00:43:22,640 --> 00:43:25,680
Blackwood case with Davis. 
They restricted his access to 

901
00:43:25,680 --> 00:43:28,840
the digital network. 
They physically placed his 

902
00:43:28,840 --> 00:43:32,760
office on an entirely different 
floor, separated by at least 

903
00:43:32,760 --> 00:43:35,400
three other offices from any 
attorney touching the 

904
00:43:35,400 --> 00:43:37,960
litigation. 
They placed brightly colored 

905
00:43:37,960 --> 00:43:41,640
warning labels on every single 
physical file folder related to 

906
00:43:41,640 --> 00:43:45,160
the case that read Do not 
discuss with Macklin Davis. 

907
00:43:45,360 --> 00:43:48,480
And they ensured he received 
absolutely no portion of the 

908
00:43:48,480 --> 00:43:52,480
fees generated by the lawsuit. 
By every objective metric, it 

909
00:43:52,480 --> 00:43:54,480
was an airtight, flawless 
screen. 

910
00:43:54,760 --> 00:43:57,240
So if this case had been 
litigated in a modern model 

911
00:43:57,320 --> 00:43:59,560
rules jurisdiction, Waller 
survived. 

912
00:43:59,560 --> 00:44:02,400
They followed one point AA 2 to 
the letter. 

913
00:44:02,760 --> 00:44:05,800
The presumption of showed 
confidence is rebutted, the 

914
00:44:05,800 --> 00:44:08,800
imputation is broken, and they 
get to keep litigating the case.

915
00:44:08,800 --> 00:44:11,360
The trial court actually agreed 
with that analysis. 

916
00:44:11,360 --> 00:44:12,520
Wait, really? 
Yes. 

917
00:44:12,640 --> 00:44:14,880
The trial judge looked at the 
brightly colored folders in the 

918
00:44:14,880 --> 00:44:17,360
firewalls and concluded that the
presumption of shared 

919
00:44:17,360 --> 00:44:19,560
confidences have been 
successfully rebutted. 

920
00:44:20,240 --> 00:44:23,160
The screen worked mechanically. 
But the Tennessee Supreme Court 

921
00:44:23,160 --> 00:44:25,560
stepped in and pulled the 
emergency brake. 

922
00:44:25,840 --> 00:44:28,640
They invoked an older standard, 
specifically ethical 

923
00:44:28,640 --> 00:44:32,200
consideration 9 to 6, which 
dictates that a lawyer owes a 

924
00:44:32,200 --> 00:44:36,400
solemn duty to avoid not only 
professional impropriety but 

925
00:44:36,400 --> 00:44:39,160
also the mere appearance of 
impropriety. 

926
00:44:39,480 --> 00:44:41,640
Which brings us right back to 
the paranoia of the former 

927
00:44:41,640 --> 00:44:43,440
client. 
Yes, but how did the court 

928
00:44:43,440 --> 00:44:46,080
define appearance? 
Because appearance is entirely 

929
00:44:46,080 --> 00:44:48,680
subjective. 
If my former client is a deeply 

930
00:44:48,680 --> 00:44:50,960
paranoid person, everything 
looks improper. 

931
00:44:51,200 --> 00:44:53,840
The standard can't just be 
whatever makes the client 

932
00:44:53,840 --> 00:44:55,760
uncomfortable. 
The court recognized that 

933
00:44:55,760 --> 00:44:57,400
danger. 
They acknowledge that the 

934
00:44:57,400 --> 00:44:59,880
standard must be objective, not 
subjective. 

935
00:45:00,080 --> 00:45:02,640
So what's the objective metric? 
They ruled that the appearance 

936
00:45:02,640 --> 00:45:05,640
of impropriety must be evaluated
from the perspective of a 

937
00:45:05,640 --> 00:45:09,320
reasonable layperson, an 
ordinary knowledgeable citizen 

938
00:45:09,320 --> 00:45:11,880
acquainted with the facts. 
So the court imagined an 

939
00:45:11,880 --> 00:45:14,840
ordinary citizen looking at the 
totality of the circumstances. 

940
00:45:15,440 --> 00:45:17,960
An attorney learns all the 
secrets of a family's defense, 

941
00:45:18,120 --> 00:45:21,640
withdraws, and then joins the 
firm, actively trying to destroy

942
00:45:21,640 --> 00:45:24,760
that family in the same case. 
And the court concluded that no 

943
00:45:24,760 --> 00:45:27,360
matter how many brightly colored
stickers you put on a file 

944
00:45:27,360 --> 00:45:31,120
folder, an ordinary citizen 
would view a law firm switching 

945
00:45:31,120 --> 00:45:34,400
sides in the middle of a war to 
be fundamentally, deeply 

946
00:45:34,400 --> 00:45:35,680
objectionable. 
Wow. 

947
00:45:36,000 --> 00:45:38,840
And what was the remedy? 
The court stated that the taint 

948
00:45:38,840 --> 00:45:42,840
of the appearance of impropriety
was so severe and the threat to 

949
00:45:42,840 --> 00:45:46,240
the public's perception of the 
legal system so profound, that 

950
00:45:46,240 --> 00:45:49,400
it could only be purged by the 
most extreme remedy available. 

951
00:45:49,520 --> 00:45:51,960
Total disqualification of the 
entire Waller firm. 

952
00:45:52,240 --> 00:45:55,920
The mechanical screen kept the 
physical secret safe, but it was

953
00:45:55,920 --> 00:45:58,680
utterly powerless to save the 
firms moral image. 

954
00:45:58,920 --> 00:46:01,120
The Clinard case is a stark 
warning. 

955
00:46:01,920 --> 00:46:05,480
You can follow every mechanical 
rule perfectly, build a flawless

956
00:46:05,480 --> 00:46:08,560
wall, and still face 
catastrophic disqualification 

957
00:46:08,720 --> 00:46:11,240
because your jurisdiction 
prioritizes optics over 

958
00:46:11,240 --> 00:46:13,520
mechanics. 
If you are analyzing A lateral 

959
00:46:13,520 --> 00:46:17,120
move on an exam, you must 
instantly identify which sandbox

960
00:46:17,120 --> 00:46:19,280
you are playing in. 
If the prompt indicates you're 

961
00:46:19,280 --> 00:46:22,080
in a modern model rules 
jurisdiction, walk through the 

962
00:46:22,080 --> 00:46:24,920
screening mechanics. 
If the prompt explicitly 

963
00:46:24,920 --> 00:46:28,160
mentions a jurisdiction that 
adheres to the historical 

964
00:46:28,160 --> 00:46:31,760
appearance of impropriety 
standard, the firm is dead in 

965
00:46:31,760 --> 00:46:34,520
the water. 
And that concept, the idea that 

966
00:46:34,520 --> 00:46:37,560
the perception of integrity is 
just as vital as actual 

967
00:46:37,560 --> 00:46:41,240
integrity, provides a perfect 
bridge to our final substantive 

968
00:46:41,240 --> 00:46:43,640
framework. 
Yes, moving from the private 

969
00:46:43,640 --> 00:46:46,520
sector to the public sector. 
Up to this point, we have been 

970
00:46:46,520 --> 00:46:49,160
discussing the private sector, 
where the debate centers on 

971
00:46:49,160 --> 00:46:51,920
balancing client protection 
against the realities of 

972
00:46:51,920 --> 00:46:53,880
corporate capitalism and lawyer 
mobility. 

973
00:46:54,520 --> 00:46:56,840
But when an attorney moves 
between the private sector and 

974
00:46:56,840 --> 00:47:00,640
the government, the entire 
philosophy of the rules changes.

975
00:47:00,880 --> 00:47:04,720
This brings us to Rule 1.11, the
revolving door. 

976
00:47:05,040 --> 00:47:07,720
The government rules are 
fundamentally different because 

977
00:47:07,720 --> 00:47:10,160
the stakes are different. 
The rules aren't just protecting

978
00:47:10,160 --> 00:47:13,120
a private corporations patent 
strategy anymore, they are 

979
00:47:13,120 --> 00:47:16,000
protecting the absolute 
integrity of public office. 

980
00:47:16,040 --> 00:47:18,720
We need to prevent a reality 
where government attorneys use 

981
00:47:18,720 --> 00:47:22,920
their sovereign power to harass 
a company purely to extort a 

982
00:47:22,920 --> 00:47:26,280
lucrative private partnership 
offer from that companies 

983
00:47:26,280 --> 00:47:29,840
defense firm later on. 
But simultaneously, we can't 

984
00:47:29,840 --> 00:47:33,720
make the rules so suffocating 
that no brilliant young lawyer 

985
00:47:33,720 --> 00:47:36,480
ever wants to work for the 
Department of Justice because it

986
00:47:36,480 --> 00:47:38,520
will permanently ruin their 
private career. 

987
00:47:38,640 --> 00:47:42,360
It is a delicate balancing act 
to achieve that balance. 

988
00:47:42,360 --> 00:47:47,240
Rule 1.11 discards the broad, 
substantially related test 

989
00:47:47,280 --> 00:47:48,840
entirely. 
Oh, that's interesting. 

990
00:47:48,840 --> 00:47:50,560
Why? 
Well, if we use the 

991
00:47:50,560 --> 00:47:53,520
substantially related test, a 
former attorney for the 

992
00:47:53,520 --> 00:47:57,040
Environmental Protection Agency 
could never enter a private 

993
00:47:57,040 --> 00:47:59,720
environmental practice. 
Because every single 

994
00:47:59,720 --> 00:48:03,560
environmental lawsuit is in some
ways substantially related to 

995
00:48:03,560 --> 00:48:06,880
the regulatory work of the EPA. 
Right government service would 

996
00:48:06,880 --> 00:48:08,800
become a career ending black 
hole. 

997
00:48:09,120 --> 00:48:13,000
So Rule 1.11 uses a much 
narrower, much more precise 

998
00:48:13,000 --> 00:48:14,440
standard. 
What's the standard? 

999
00:48:14,440 --> 00:48:16,840
A former government lawyer is 
only prohibited from 

1000
00:48:16,840 --> 00:48:20,160
representing a private client in
connection with a particular 

1001
00:48:20,160 --> 00:48:23,200
matter in which the lawyer 
participated personally and 

1002
00:48:23,200 --> 00:48:25,760
substantially while in 
government service. 

1003
00:48:25,800 --> 00:48:28,600
Unless the government agency 
explicitly consents. 

1004
00:48:28,600 --> 00:48:30,880
Exactly. 
Those two phrases are the keys 

1005
00:48:30,880 --> 00:48:34,520
to the Kingdom particular matter
and participated personally and 

1006
00:48:34,520 --> 00:48:37,000
substantially. 
Let's define particular matter 

1007
00:48:37,000 --> 00:48:39,720
first, because it limits the 
scope of the restriction 

1008
00:48:39,720 --> 00:48:42,240
dramatically. 
A particular matter is strictly 

1009
00:48:42,240 --> 00:48:46,120
defined as a specific legal 
action involving specific 

1010
00:48:46,280 --> 00:48:49,560
identifiable parties. 
We are talking about a specific 

1011
00:48:49,560 --> 00:48:53,280
corporate merger, a specific 
criminal prosecution and 

1012
00:48:53,280 --> 00:48:56,120
individual tax audit or a 
targeted government 

1013
00:48:56,120 --> 00:48:58,960
investigation. 
General broad based government 

1014
00:48:58,960 --> 00:49:01,800
work does not count. 
Drafting legislation, 

1015
00:49:02,000 --> 00:49:05,280
participating in agency 
rulemaking, or defining broad 

1016
00:49:05,280 --> 00:49:08,360
enforcement policy does not 
constitute a particular matter. 

1017
00:49:08,560 --> 00:49:11,120
To put that into a concrete 
hypothetical, if you work for 

1018
00:49:11,120 --> 00:49:14,720
the IRS and you spend 2 years 
drafting the complex new 

1019
00:49:14,720 --> 00:49:16,800
regulations for cryptocurrency 
taxation I. 

1020
00:49:17,000 --> 00:49:19,920
Can resign from the government 
on Friday, open a private tax 

1021
00:49:19,920 --> 00:49:22,760
boutique on Monday, and 
immediately begin advising 

1022
00:49:22,760 --> 00:49:26,080
private tech billionaires on how
to legally navigate and exploit 

1023
00:49:26,320 --> 00:49:28,960
the exact loopholes in the 
regulations I just wrote. 

1024
00:49:29,160 --> 00:49:32,600
Because drafting a regulation is
broad policy, not a particular 

1025
00:49:32,600 --> 00:49:34,480
matter involving specific 
parties. 

1026
00:49:34,680 --> 00:49:37,800
As unseemly as that might look 
to the general public, ethically

1027
00:49:37,920 --> 00:49:41,680
you are completely in the clear.
However, if your role at the IRS

1028
00:49:41,680 --> 00:49:45,040
was leading a targeted forensic 
tax audit of Elon Musk's 

1029
00:49:45,040 --> 00:49:47,560
personal holdings. 
That audit is a particular 

1030
00:49:47,560 --> 00:49:49,400
matter involving a specific 
party. 

1031
00:49:50,120 --> 00:49:53,840
I cannot resign from the IRS and
then represent Elon Musk in that

1032
00:49:53,840 --> 00:49:57,160
exact same ongoing audit. 
But the restriction only applies

1033
00:49:57,160 --> 00:49:59,760
if you participated personally 
and substantially in that 

1034
00:49:59,760 --> 00:50:02,240
specific audit. 
And this raises A crucial issue 

1035
00:50:02,240 --> 00:50:05,720
of chain of command liability. 
We have a highly illuminated 

1036
00:50:05,720 --> 00:50:10,240
fact pattern from New York State
Ethics Opinion 12:57 that tests 

1037
00:50:10,240 --> 00:50:13,280
exactly how high up the ladder 
this restriction climbs. 

1038
00:50:13,400 --> 00:50:15,760
The New York scenario is 
incredibly common in the 

1039
00:50:15,760 --> 00:50:18,440
criminal justice system. 
You have an attorney who serves 

1040
00:50:18,440 --> 00:50:21,080
as the elected District Attorney
for a major county. 

1041
00:50:21,400 --> 00:50:23,840
In that role, they are the chief
law enforcement officer. 

1042
00:50:24,360 --> 00:50:26,960
Their printed signature is 
rubber stamped onto the bottom 

1043
00:50:26,960 --> 00:50:29,760
of every single criminal 
indictment generated by the 

1044
00:50:29,760 --> 00:50:32,160
hundreds of line prosecutors in 
their office. 

1045
00:50:32,680 --> 00:50:35,560
Eventually, this DA leaves 
office and transitions into 

1046
00:50:35,560 --> 00:50:38,360
criminal defense work, perhaps 
joining the county public 

1047
00:50:38,360 --> 00:50:41,160
defender's office. 
The critical question arises 

1048
00:50:41,640 --> 00:50:45,400
because their name was literally
on the paperwork for every 

1049
00:50:45,400 --> 00:50:48,000
single prosecution initiated 
during their tenure. 

1050
00:50:48,520 --> 00:50:51,960
Are they ethically conflicted 
out of defending every single 

1051
00:50:51,960 --> 00:50:55,120
one of those pending cases? 
If we blindly apply the rules of

1052
00:50:55,120 --> 00:50:57,200
private imputation, the answer 
would be yes. 

1053
00:50:57,480 --> 00:50:59,640
The head partner is responsible 
for the firm. 

1054
00:51:00,400 --> 00:51:02,760
But applying the personally and 
substantially requirement of 

1055
00:51:02,760 --> 00:51:05,960
Rule 1.11, the analysis is much 
more forgiving. 

1056
00:51:06,240 --> 00:51:10,000
The ethics opinion provides a 
clear pragmatic framework, a 

1057
00:51:10,000 --> 00:51:13,000
nominal supervisory role. 
Simply being the figurehead 

1058
00:51:13,000 --> 00:51:15,720
whose name is printed on the 
letterhead does not equate to 

1059
00:51:15,720 --> 00:51:18,040
personal and substantial 
participation. 

1060
00:51:18,200 --> 00:51:20,880
The committee asks specific 
operational questions. 

1061
00:51:21,520 --> 00:51:24,680
Did the former DA serve in more 
than a nominal supervisory role 

1062
00:51:24,680 --> 00:51:26,320
on this specific defendant's 
case? 

1063
00:51:26,440 --> 00:51:29,320
Did they personally review the 
evidentiary file? 

1064
00:51:29,320 --> 00:51:31,240
Did they sit in on the strategy 
meetings? 

1065
00:51:31,240 --> 00:51:33,560
Did they acquire actual 
knowledge of government 

1066
00:51:33,560 --> 00:51:35,720
confidences regarding the 
specific defendant? 

1067
00:51:36,000 --> 00:51:39,520
If the DA was managing an office
of 500 prosecutors and never 

1068
00:51:39,520 --> 00:51:42,040
actually looked at the file for 
a low level shoplifting 

1069
00:51:42,040 --> 00:51:44,680
misdemeanor, they did not 
personally and substantially 

1070
00:51:44,680 --> 00:51:47,560
participate in it. 
Therefore, they are entirely 

1071
00:51:47,560 --> 00:51:50,720
free to defend that individual 
as a public defender. 

1072
00:51:50,800 --> 00:51:54,520
The restriction requires actual 
tactile involvement in the case.

1073
00:51:54,520 --> 00:51:58,320
But let's look at the flip side.
Let's return to our EPA attorney

1074
00:51:58,360 --> 00:52:01,160
who did personally and 
substantially investigate a 

1075
00:52:01,160 --> 00:52:04,560
specific chemical company. 
That attorney is personally 

1076
00:52:04,560 --> 00:52:07,600
disqualified from representing 
the chemical company in private 

1077
00:52:07,600 --> 00:52:09,440
practice. 
When that disqualified 

1078
00:52:09,440 --> 00:52:13,120
government attorney joins a 
massive 1000 lawyer defense 

1079
00:52:13,120 --> 00:52:17,040
firm, does their infection 
impute to the entire private 

1080
00:52:17,040 --> 00:52:19,400
firm? 
Does the private firm have to 

1081
00:52:19,400 --> 00:52:22,160
drop the chemical company as a 
client? 

1082
00:52:22,280 --> 00:52:26,560
This is where Rule 1.11 offers a
tremendous structural advantage 

1083
00:52:26,840 --> 00:52:29,520
to private firms hiring former 
government talent. 

1084
00:52:29,800 --> 00:52:32,600
Under the specific government 
rules, the private firm can 

1085
00:52:32,600 --> 00:52:35,920
avoid firm wide imputation and 
they don't have to worry about 

1086
00:52:35,920 --> 00:52:39,040
the fuzzy appearance of 
impropriety standard overriding 

1087
00:52:39,040 --> 00:52:41,000
them. 
The firm is simply mandated to 

1088
00:52:41,000 --> 00:52:43,840
utilize the mechanical screening
procedures we discussed earlier.

1089
00:52:44,040 --> 00:52:46,920
They must enact A timely, 
effective screen. 

1090
00:52:46,920 --> 00:52:49,960
Ensure the former government 
lawyer receives no apportioned 

1091
00:52:49,960 --> 00:52:53,320
fee from the matter. 
And crucially, they must provide

1092
00:52:53,320 --> 00:52:56,440
prompt written notice to the 
affected government agency. 

1093
00:52:56,440 --> 00:53:01,600
So the mechanics of 1.10 A 2 are
essentially grafted onto one 

1094
00:53:01,600 --> 00:53:04,560
point Lev 1 to protect 
government secrets while 

1095
00:53:04,560 --> 00:53:06,640
allowing the revolving door to 
keep spinning. 

1096
00:53:06,760 --> 00:53:09,720
But we cannot end our analysis 
of government lawyers without 

1097
00:53:09,720 --> 00:53:12,560
discussing the ultimate hazard. 
The criminal statutes. 

1098
00:53:12,560 --> 00:53:14,520
Yes. 
When dealing with private 

1099
00:53:14,520 --> 00:53:17,400
conflicts, the worst case 
scenario is losing your law 

1100
00:53:17,400 --> 00:53:19,560
license. 
When dealing with the federal 

1101
00:53:19,560 --> 00:53:22,200
government, the worst case 
scenario is losing your liberty.

1102
00:53:22,240 --> 00:53:25,880
We have to address the federal 
statutory overlay, specifically 

1103
00:53:25,880 --> 00:53:29,960
18 USC Section 2O7. 
Section 2O7 elevates these 

1104
00:53:29,960 --> 00:53:32,040
ethical guidelines into federal 
criminal law. 

1105
00:53:32,680 --> 00:53:35,080
It imposes severe post 
employment restrictions on 

1106
00:53:35,080 --> 00:53:37,840
former officers and employees of
the executive branch. 

1107
00:53:37,920 --> 00:53:39,680
And it operates on 2 distinct 
timelines. 

1108
00:53:39,680 --> 00:53:42,880
First, it codifies the ethical 
rule into a lifetime criminal 

1109
00:53:42,880 --> 00:53:44,120
ban. 
The lifetime ban. 

1110
00:53:44,160 --> 00:53:45,960
Yes. 
A former federal employee is 

1111
00:53:45,960 --> 00:53:48,840
permanently prohibited from 
making any communication to or 

1112
00:53:48,840 --> 00:53:52,440
appearance before any federal 
agency or court on behalf of a 

1113
00:53:52,440 --> 00:53:55,080
private party in connection with
a particular matter in which 

1114
00:53:55,080 --> 00:53:57,440
they participated personally and
substantially. 

1115
00:53:57,680 --> 00:54:00,760
If you violate that, you aren't 
just facing a state Guard 

1116
00:54:00,760 --> 00:54:03,240
committee, you're facing a 
federal indictment. 

1117
00:54:03,400 --> 00:54:07,000
A lifetime ban for personal 
involvement but the statute 

1118
00:54:07,000 --> 00:54:09,760
actually goes further than the 
ethics rules when it comes to 

1119
00:54:09,760 --> 00:54:12,720
supervisors it. 
Introduces a time limited ban 

1120
00:54:12,720 --> 00:54:15,880
for matters you supervise but 
didn't actually touch right. 

1121
00:54:16,160 --> 00:54:20,600
Yes, the two year official 
responsibility ban, even if a 

1122
00:54:20,600 --> 00:54:23,360
high-ranking federal employee 
did not personally and 

1123
00:54:23,360 --> 00:54:26,680
substantially participate in a 
matter, if that matter was 

1124
00:54:26,680 --> 00:54:29,160
pending under their official 
responsibility during their 

1125
00:54:29,160 --> 00:54:31,000
final year of government 
service. 

1126
00:54:31,160 --> 00:54:34,080
They are criminally barred from 
representing a private party 

1127
00:54:34,080 --> 00:54:37,200
regarding that matter for two 
full years after leaving 

1128
00:54:37,200 --> 00:54:39,560
government. 
So if you were the head of an 

1129
00:54:39,560 --> 00:54:42,720
antitrust division and a massive
merger review is happening in 

1130
00:54:42,720 --> 00:54:45,720
your department during your last
year, you cannot lobby the 

1131
00:54:45,720 --> 00:54:48,760
government on behalf of those 
corporations for 24 months, even

1132
00:54:48,760 --> 00:54:50,720
if you never read a single page 
of the file. 

1133
00:54:51,160 --> 00:54:54,760
The revolving door has teeth. 
The reality is, if you are 

1134
00:54:54,760 --> 00:54:57,440
leaving federal service for 
private practice, you need a 

1135
00:54:57,440 --> 00:55:01,120
meticulous, exhaustive audit of 
every single file you touched 

1136
00:55:01,480 --> 00:55:04,320
and every single file your 
subordinates touched before you 

1137
00:55:04,320 --> 00:55:06,960
accept a private partnership. 
The risk is simply too high. 

1138
00:55:07,080 --> 00:55:11,480
It demands absolute rigor, and 
that rigor is exactly what is 

1139
00:55:11,480 --> 00:55:14,160
required to mask through this 
entire area of law. 

1140
00:55:14,240 --> 00:55:16,920
We have covered an immense 
expanse of doctrinal ground 

1141
00:55:16,920 --> 00:55:18,240
today. 
We really have. 

1142
00:55:18,720 --> 00:55:21,920
We analyzed the fundamental 
shift from loyalty to 

1143
00:55:21,920 --> 00:55:24,960
confidentiality. 
We deconstructed the objective 

1144
00:55:24,960 --> 00:55:27,120
metrics of the substantially 
related test. 

1145
00:55:27,200 --> 00:55:30,160
We mapped the boundaries of 
material adversity, even when a 

1146
00:55:30,160 --> 00:55:32,400
former client is attacking you 
on Yelp. 

1147
00:55:32,480 --> 00:55:35,720
We explored the mechanics of 
firm wide imputation, the high 

1148
00:55:35,720 --> 00:55:38,600
stakes gamble of ethical 
screening, the enduring power of

1149
00:55:38,600 --> 00:55:41,760
the appearance of impropriety in
cases like Clinard. 

1150
00:55:41,880 --> 00:55:44,680
And the specialized criminal and
ethical traps for government 

1151
00:55:44,680 --> 00:55:46,440
lawyers navigating the revolving
door. 

1152
00:55:46,520 --> 00:55:49,440
The sheer volume of rules can 
feel overwhelming, which is why 

1153
00:55:49,440 --> 00:55:52,480
we have to synthesize this into 
a functional exam attack plan. 

1154
00:55:52,720 --> 00:55:56,560
Whether you are staring down a 
three hour law school final or 

1155
00:55:56,560 --> 00:56:00,440
the multiple choice gauntlet of 
the NPRE, you cannot afford to 

1156
00:56:00,440 --> 00:56:02,080
just free associate your 
answers. 

1157
00:56:02,080 --> 00:56:04,160
You need a rigid, systematic 
approach. 

1158
00:56:04,400 --> 00:56:07,160
Here's how you attack a conflict
of interest fact pattern. 

1159
00:56:07,840 --> 00:56:12,320
Step one, freeze the timeline 
and identify the exact status of

1160
00:56:12,320 --> 00:56:15,080
the client. 
Is this an ongoing active 

1161
00:56:15,080 --> 00:56:17,480
relationship? 
If the retainer is active, you 

1162
00:56:17,480 --> 00:56:20,880
are trapped in Rule 1.7 
territory, applying the strict 

1163
00:56:20,920 --> 00:56:23,120
unyielding standard of absolute 
loyalty. 

1164
00:56:23,800 --> 00:56:25,920
But if the fact pattern 
indicates the relationship is 

1165
00:56:25,920 --> 00:56:28,120
terminated. 
You immediately discard loyalty 

1166
00:56:28,120 --> 00:56:32,200
and pivot to Rule 1.9, the realm
of perpetual confidentiality. 

1167
00:56:32,280 --> 00:56:34,760
If the lawyer is moving between 
the state or federal government 

1168
00:56:34,760 --> 00:56:37,680
and the private sector, bypass 
the general rules and jump 

1169
00:56:37,680 --> 00:56:40,360
straight to the specialized 
standards of Rule 1.11. 

1170
00:56:40,360 --> 00:56:43,480
Perfect triage Step 2. 
If you have identified that you 

1171
00:56:43,480 --> 00:56:46,360
are dealing with a former client
under Rule 1.9, you must 

1172
00:56:46,360 --> 00:56:49,640
ruthlessly apply the two prongs 
of the test. 1st Is the new 

1173
00:56:49,640 --> 00:56:52,720
matter the same or substantially
related to the old matter? 

1174
00:56:52,960 --> 00:56:56,560
Remember abandoned human memory.
Apply the objective test. 

1175
00:56:57,600 --> 00:57:01,040
Would a lawyer in that previous 
role normally have acquired 

1176
00:57:01,040 --> 00:57:04,720
confidential factual information
that would materially advance 

1177
00:57:04,720 --> 00:57:08,640
the new client's position? 
If yes, lock in the irrebutable 

1178
00:57:08,640 --> 00:57:10,680
presumption. 
Second is their material 

1179
00:57:10,680 --> 00:57:12,880
adversity. 
Are the parties on opposite 

1180
00:57:12,880 --> 00:57:15,120
sides of AV? 
Is the lawyer attacking their 

1181
00:57:15,120 --> 00:57:18,000
own prior work or are they 
preparing to cross examine their

1182
00:57:18,000 --> 00:57:20,560
former client? 
If both prongs are satisfied, 

1183
00:57:20,560 --> 00:57:22,960
the individual attorney is 
permanently disqualified. 

1184
00:57:23,120 --> 00:57:25,520
And finally, step three, trace 
the contagion. 

1185
00:57:25,680 --> 00:57:28,520
Look at imputation and defenses.
If the individual is 

1186
00:57:28,520 --> 00:57:32,680
disqualified under 1.9, look 
immediately to Rule 1.10. 

1187
00:57:32,960 --> 00:57:35,440
Does this infection spread to 
the entire firm? 

1188
00:57:35,800 --> 00:57:38,400
The default answer on an exam is
always yes. 

1189
00:57:38,640 --> 00:57:41,480
Once you establish the firm is 
infected, aggressively hunt the 

1190
00:57:41,480 --> 00:57:44,840
fact pattern for the exceptions.
Is that conflict rooted purely 

1191
00:57:44,840 --> 00:57:46,880
in a personal moral objection or
a marriage? 

1192
00:57:47,240 --> 00:57:49,720
If so, the firm is saved. 
If the conflict stems from a 

1193
00:57:49,720 --> 00:57:53,600
lateral move, did the new firm 
implement A timely, effective 

1194
00:57:53,600 --> 00:57:57,000
digital and physical screen? 
Did they ensure absolute zero 

1195
00:57:57,000 --> 00:57:59,640
fee sharing? 
Did they send prompt written 

1196
00:57:59,640 --> 00:58:03,400
notice, not a request for 
consent to the former client? 

1197
00:58:03,560 --> 00:58:06,960
And the final critical check, 
look at the call of the 

1198
00:58:06,960 --> 00:58:09,760
question. 
Are you in a modern jurisdiction

1199
00:58:09,760 --> 00:58:13,120
where the screen works, or are 
you in a strict jurisdiction 

1200
00:58:13,120 --> 00:58:16,040
where the appearance of 
impropriety will destroy the 

1201
00:58:16,040 --> 00:58:19,440
firm despite the screen? 
That three-step methodology is 

1202
00:58:19,440 --> 00:58:21,840
bulletproof. 
It forces you to hit every 

1203
00:58:21,840 --> 00:58:24,680
required element without getting
lost in the narrative weeds. 

1204
00:58:24,840 --> 00:58:27,880
But before we adjourn this 
session, we need to zoom out. 

1205
00:58:28,280 --> 00:58:31,000
We've spent this entire time 
dissecting the intricate 

1206
00:58:31,000 --> 00:58:34,520
architecture of imputation, the 
theory of shared confidences, 

1207
00:58:34,800 --> 00:58:37,840
and the links firms must go to 
build ethical walls. 

1208
00:58:37,880 --> 00:58:41,240
But the very foundation of these
rules is currently colliding 

1209
00:58:41,240 --> 00:58:43,120
with the reality of modern 
capitalism. 

1210
00:58:43,120 --> 00:58:45,040
You were talking about the rise 
of the mega firm. 

1211
00:58:45,040 --> 00:58:46,960
Yes. 
When these rules were drafted, a

1212
00:58:46,960 --> 00:58:50,040
large law firm had maybe 50 or 
100 partners in a single city. 

1213
00:58:50,400 --> 00:58:53,520
The rules were designed for an 
era where lawyers actually knew 

1214
00:58:53,520 --> 00:58:56,200
everyone in their building. 
But today, the legal landscape 

1215
00:58:56,200 --> 00:58:58,360
is dominated by global 
behemoths. 

1216
00:58:58,560 --> 00:59:04,000
We are seeing law firms with 3-4
or 5000 attorneys operating out 

1217
00:59:04,000 --> 00:59:07,160
of 40 different offices spread 
across multiple continents. 

1218
00:59:07,320 --> 00:59:11,840
These massive entities share a 
single unified brand, a single 

1219
00:59:11,840 --> 00:59:15,840
letterhead, a single IT 
infrastructure and, crucially, a

1220
00:59:15,840 --> 00:59:19,360
single global profit pool. 
As these firms continue their 

1221
00:59:19,360 --> 00:59:22,400
relentless consolidation and 
growth, swallowing up smaller 

1222
00:59:22,400 --> 00:59:25,400
boutiques and lateral partners 
every week, it becomes 

1223
00:59:25,400 --> 00:59:28,120
statistically inevitable that 
they will encounter former 

1224
00:59:28,120 --> 00:59:31,640
client conflicts constantly. 
It is mathematically impossible 

1225
00:59:31,640 --> 00:59:36,200
for a 5000 lawyer firm to not be
adverse to almost every major 

1226
00:59:36,200 --> 00:59:37,800
corporation on earth at some 
point. 

1227
00:59:37,800 --> 00:59:40,240
Which means the exception is 
going to become the rule. 

1228
00:59:40,560 --> 00:59:43,600
These mega firms will have to 
rely on ethical screens not just

1229
00:59:43,600 --> 00:59:46,640
occasionally but as a 
fundamental daily operating 

1230
00:59:46,640 --> 00:59:49,200
procedure just to survive and 
take on new business. 

1231
00:59:49,200 --> 00:59:51,600
Which forces us to ask a 
profound philosophical question 

1232
00:59:51,600 --> 00:59:54,560
about the future of our 
profession if a junior associate

1233
00:59:54,560 --> 00:59:57,440
in the London office of a mega 
firm is completely isolated and 

1234
00:59:57,440 --> 01:00:00,320
screened from a case being 
handled by a senior partner in 

1235
01:00:00,320 --> 01:00:02,920
the Tokyo office. 
Two lawyers who have never met, 

1236
01:00:03,080 --> 01:00:05,520
who operate in different time 
zones, and who don't even speak 

1237
01:00:05,520 --> 01:00:08,520
the same language. 
Does the historic fear of shared

1238
01:00:08,520 --> 01:00:11,040
confidences still make any 
logical sense? 

1239
01:00:11,520 --> 01:00:14,840
Does the appearance of 
impropriety that terrified the 

1240
01:00:14,840 --> 01:00:18,240
Tennessee Supreme Court in 
Clenard still resonate when the 

1241
01:00:18,240 --> 01:00:21,120
firm is literally larger than 
most small towns? 

1242
01:00:21,520 --> 01:00:25,480
Or will the sheer overwhelming 
economic reality of the 21st 

1243
01:00:25,480 --> 01:00:29,280
century global legal market 
force the regulatory bodies to 

1244
01:00:29,280 --> 01:00:34,600
completely rewrite Rule 1.10? 
Perhaps abandoning firm wide 

1245
01:00:34,600 --> 01:00:37,160
imputation altogether in favor 
of a new paradigm. 

1246
01:00:37,400 --> 01:00:40,680
It is the ultimate collision 
between ancient fiduciary duties

1247
01:00:40,680 --> 01:00:43,640
and modern global capitalism. 
The diagnostic landscape we 

1248
01:00:43,640 --> 01:00:45,880
talked about at the beginning 
might be murky now, but the 

1249
01:00:45,880 --> 01:00:48,640
sheer size and gravity of the 
modern law firm might force the 

1250
01:00:48,640 --> 01:00:51,760
American Bar Association to 
invent an entirely new kind of 

1251
01:00:51,760 --> 01:00:54,000
ethical MRI. 
Something to ponder as you 

1252
01:00:54,000 --> 01:00:56,560
review your outlines. 
Thank you so much for joining us

1253
01:00:56,560 --> 01:00:59,400
on this deep dive into the 
architecture of confidentiality.

1254
01:00:59,880 --> 01:01:02,840
Keep that three-step exam attack
plan drilled into your memory. 

1255
01:01:03,080 --> 01:01:06,360
Never forget that while loyalty 
is fleeting, a client's secrets 

1256
01:01:06,360 --> 01:01:09,320
are forever, and we will see you
on the next deep dive. 

1257
01:01:09,480 --> 01:01:12,240
All right, everyone welcome. 
Let's dive right into one of the

1258
01:01:12,240 --> 01:01:15,320
most frequently tested areas in 
professional responsibility, 

1259
01:01:15,600 --> 01:01:18,240
conflicts of interest involving 
former clients. 

1260
01:01:18,520 --> 01:01:21,240
This is one of those topics that
shows up all the time, and 

1261
01:01:21,240 --> 01:01:23,680
getting bring it right on an 
exam really comes down to being 

1262
01:01:23,680 --> 01:01:26,000
precise. 
So today we are going to build 

1263
01:01:26,000 --> 01:01:28,160
your analytical framework step 
by step. 

1264
01:01:28,640 --> 01:01:30,440
OK, so here's our road map for 
today. 

1265
01:01:30,920 --> 01:01:33,040
We're going to start with the 
single most important idea in 

1266
01:01:33,040 --> 01:01:35,960
this area, the core distinction 
between duties to current and 

1267
01:01:35,960 --> 01:01:38,640
former clients. 
From there, we'll dig into the 

1268
01:01:38,640 --> 01:01:41,520
rule for the individual lawyer 
and then see how that lawyer's 

1269
01:01:41,520 --> 01:01:43,120
problem can infect an entire 
firm. 

1270
01:01:43,680 --> 01:01:46,880
After that, we'll talk about the
cure screening, and finally, 

1271
01:01:46,880 --> 01:01:49,400
we'll tackle the special rules 
for government lawyers and then 

1272
01:01:49,400 --> 01:01:51,760
wrap it all up with a concrete 
attack plan for your exam. 

1273
01:01:52,280 --> 01:01:55,240
First things first, to really 
get a handle on former client 

1274
01:01:55,240 --> 01:01:57,720
conflicts, you have to nail this
one point. 

1275
01:01:58,080 --> 01:02:00,520
It's all about a fundamental 
shift that occurs the moment a 

1276
01:02:00,520 --> 01:02:03,400
client becomes a former client. 
Your main duty changes 

1277
01:02:03,400 --> 01:02:05,160
completely. 
If you get this wrong, your 

1278
01:02:05,160 --> 01:02:08,600
entire analysis is going to go 
off the rails, so check this 

1279
01:02:08,600 --> 01:02:11,040
out. 
For a current client, your 

1280
01:02:11,040 --> 01:02:15,880
primary duty is loyalty. 
And loyalty is, well, it's huge.

1281
01:02:16,040 --> 01:02:19,000
It's this broad, 
all-encompassing duty to not do 

1282
01:02:19,000 --> 01:02:20,800
anything that could harm their 
interests. 

1283
01:02:21,160 --> 01:02:23,800
But the second that 
representation ends and they 

1284
01:02:23,800 --> 01:02:27,080
become a former client, that 
duty of loyalty basically 

1285
01:02:27,080 --> 01:02:29,080
evaporates. 
So what's left? 

1286
01:02:29,680 --> 01:02:32,280
Confidentiality. 
That duty is forever. 

1287
01:02:32,600 --> 01:02:36,080
The entire focus narrows from 
this big shield of loyalty down 

1288
01:02:36,080 --> 01:02:39,360
to a very specific lock box 
protecting their secrets. 

1289
01:02:39,840 --> 01:02:43,040
OK, so now that we've got that 
core distinction between loyalty

1290
01:02:43,040 --> 01:02:45,880
and confidentiality locked in, 
let's get into the black letter 

1291
01:02:45,880 --> 01:02:47,760
law. 
We're talking about model Rule 

1292
01:02:47,760 --> 01:02:50,080
1.9. 
This is the rule for you, the 

1293
01:02:50,080 --> 01:02:53,280
individual lawyer, and it gives 
us the two-part test to figure 

1294
01:02:53,280 --> 01:02:55,160
out if you actually have a 
conflict. 

1295
01:02:55,760 --> 01:02:59,040
So here it is, the test from 
rule 1.9. 

1296
01:02:59,240 --> 01:03:01,360
A. 
You have to ask 2 questions, and

1297
01:03:01,360 --> 01:03:04,600
for a conflict to exist, the 
answer has to be yes to both of 

1298
01:03:04,600 --> 01:03:07,320
them. 
First, is this new case the same

1299
01:03:07,320 --> 01:03:10,160
or a substantially related 
matter to the one you handled 

1300
01:03:10,160 --> 01:03:13,240
for your old client? 
And second, are the interests of

1301
01:03:13,240 --> 01:03:16,200
your new client materially 
adverse to your former client? 

1302
01:03:16,440 --> 01:03:19,960
If it's yes and yes, Ding Ding, 
Ding, you spotted a conflict, 

1303
01:03:20,560 --> 01:03:24,040
now this substantial 
relationship test, this is the 

1304
01:03:24,160 --> 01:03:27,280
absolute heart of the matter. 
It's the linchpin of the whole 

1305
01:03:27,280 --> 01:03:30,200
analysis, and you have to define
it just right on an exam. 

1306
01:03:30,520 --> 01:03:32,560
The key here isn't about what 
you actually learned. 

1307
01:03:32,640 --> 01:03:35,440
Forget that. 
The question is, is there a real

1308
01:03:35,440 --> 01:03:38,280
risk that a lawyer in your shoes
would have normally gotten 

1309
01:03:38,280 --> 01:03:41,560
confidential info that could be 
used to hurt the old client in 

1310
01:03:41,560 --> 01:03:43,640
the new case? 
It's an objective standard. 

1311
01:03:43,640 --> 01:03:45,400
It doesn't remember if you have 
a terrible memory. 

1312
01:03:45,520 --> 01:03:48,200
What matters is what a lawyer in
that position could have 

1313
01:03:48,200 --> 01:03:51,000
learned. 
Yeah, And this quote really just

1314
01:03:51,000 --> 01:03:53,240
nails it. 
The question is simply could 

1315
01:03:53,240 --> 01:03:55,680
confidential info have been 
obtained? 

1316
01:03:56,000 --> 01:03:58,120
And here's the big exam trap. 
So listen up. 

1317
01:03:58,520 --> 01:04:02,040
If the answer is yes, many 
courts will then just say we 

1318
01:04:02,040 --> 01:04:04,440
presume you got it. 
And it's an irrebutable 

1319
01:04:04,440 --> 01:04:06,400
presumption that means you can't
argue. 

1320
01:04:06,640 --> 01:04:09,240
But, Professor, I don't remember
a thing. 

1321
01:04:09,480 --> 01:04:12,080
It doesn't matter. 
The risk is what creates the 

1322
01:04:12,080 --> 01:04:13,920
conflict, not your actual 
memory. 

1323
01:04:14,560 --> 01:04:17,280
All right, the second part of 
the test is usually a bit easier

1324
01:04:17,280 --> 01:04:20,400
to spot material adversity. 
I mean, this is the obvious 

1325
01:04:20,400 --> 01:04:22,880
stuff, right? 
You're suing your former client.

1326
01:04:23,080 --> 01:04:25,120
You're negotiating against them 
in a big deal. 

1327
01:04:25,280 --> 01:04:28,160
Or a slightly trickier one 
you'll see on exams is when you 

1328
01:04:28,160 --> 01:04:31,160
try to tear down the very work 
you did for them before, like 

1329
01:04:31,160 --> 01:04:33,400
trying to invalidate a contract 
you drafted. 

1330
01:04:33,640 --> 01:04:35,640
That is absolutely material 
adversity. 

1331
01:04:36,240 --> 01:04:39,880
OK, let's pause for a second on 
a really fine point in Rule 1.9.

1332
01:04:39,880 --> 01:04:42,360
But it's a good one. 
This rule isn't just about 

1333
01:04:42,360 --> 01:04:45,400
taking on cases, it's about 
handling the information you 

1334
01:04:45,400 --> 01:04:47,320
got. 
And there's a huge difference 

1335
01:04:47,320 --> 01:04:49,320
between using it and revealing 
it. 

1336
01:04:49,600 --> 01:04:53,040
You can't use their secrets to 
hurt them, unless that info is 

1337
01:04:53,040 --> 01:04:55,280
now you know public knowledge or
generally known. 

1338
01:04:55,560 --> 01:04:57,880
But revealing it? 
Nope, no exceptions. 

1339
01:04:57,960 --> 01:05:00,680
That duty is absolute. 
You can never, ever reveal it, 

1340
01:05:00,680 --> 01:05:02,800
even if everyone on the street 
knows it. 

1341
01:05:03,160 --> 01:05:06,160
All right, so let's say one 
lawyer in a firm has a conflict.

1342
01:05:06,520 --> 01:05:08,120
So what? 
Does that problem stay with 

1343
01:05:08,120 --> 01:05:09,840
them? 
Or does it spread to everyone 

1344
01:05:09,840 --> 01:05:11,960
else at the firm? 
Well, that's where the doctrine 

1345
01:05:11,960 --> 01:05:14,400
of imputation comes in. 
This is all about how one 

1346
01:05:14,400 --> 01:05:16,920
lawyer's problem can become the 
entire firm's problem. 

1347
01:05:17,320 --> 01:05:21,280
So under roll 1.10, imputation 
is the default. 

1348
01:05:21,560 --> 01:05:23,360
You should think of it like a 
contagion. 

1349
01:05:23,600 --> 01:05:26,480
The conflict spreads from the 
one lawyer to the entire firm. 

1350
01:05:26,880 --> 01:05:29,040
And the reason why is just 
common sense, right? 

1351
01:05:29,320 --> 01:05:32,160
The law presumes that lawyers in
a firm talk to each other. 

1352
01:05:32,280 --> 01:05:34,440
They share files, they 
brainstorm over coffee. 

1353
01:05:34,760 --> 01:05:37,920
So if one lawyer is infected 
with a conflict, the entire firm

1354
01:05:37,920 --> 01:05:40,680
is considered tainted and gets 
disqualified from the case. 

1355
01:05:41,240 --> 01:05:45,680
But, and this is a big but, that
firm wide disqualification isn't

1356
01:05:45,680 --> 01:05:49,160
always a life sentence. 
There is a cure, especially 

1357
01:05:49,160 --> 01:05:51,800
today when lawyers jump between 
firms all the time. 

1358
01:05:52,200 --> 01:05:54,040
The rules had to create an off 
ramp. 

1359
01:05:54,440 --> 01:05:57,840
And that solution, that powerful
cure is the ethical screen. 

1360
01:05:58,360 --> 01:06:01,240
Now, you can't just say we're 
screening them and call it a 

1361
01:06:01,240 --> 01:06:03,200
day. 
The rules are super strict about

1362
01:06:03,200 --> 01:06:05,080
this. 
To make a screen work and save 

1363
01:06:05,080 --> 01:06:07,320
the firm from disqualification, 
you have to hit three 

1364
01:06:07,320 --> 01:06:09,840
requirements. 
One, the screen has to be put in

1365
01:06:09,840 --> 01:06:12,080
place right away, and it has to 
be real. 

1366
01:06:12,320 --> 01:06:15,040
We're talking a solid wall. 
No access to electronic or 

1367
01:06:15,040 --> 01:06:18,240
physical files. 
No talking about the case 2 The 

1368
01:06:18,240 --> 01:06:20,320
conflicted lawyer can't get paid
from that case. 

1369
01:06:20,440 --> 01:06:23,600
Not one dime of the fee. 
And three, you have to give the 

1370
01:06:23,600 --> 01:06:26,200
former client prompt written 
notice about what you're doing. 

1371
01:06:26,680 --> 01:06:29,200
And here's another huge exam 
point. 

1372
01:06:29,520 --> 01:06:32,400
Not everyone agrees on this. 
There's a major split between 

1373
01:06:32,400 --> 01:06:35,320
jurisdictions. 
The modern ABA rule, which most 

1374
01:06:35,320 --> 01:06:38,480
states follow, says screening is
OK for a lawyer who moves 

1375
01:06:38,480 --> 01:06:41,280
between private firms. 
But, and you have to watch out 

1376
01:06:41,280 --> 01:06:44,400
for this, some jurisdictions 
still follow an older, much 

1377
01:06:44,400 --> 01:06:46,960
tougher rule that says, Nope, no
screening allowed. 

1378
01:06:47,160 --> 01:06:49,320
If one lawyer is out, the whole 
firm is out. 

1379
01:06:49,600 --> 01:06:52,400
So you absolutely have to read 
the call of the question on your

1380
01:06:52,400 --> 01:06:56,720
exam to see which rule applies. 
So what are the rules trying to 

1381
01:06:56,720 --> 01:06:59,000
do here? 
It's really a balancing act, a 

1382
01:06:59,000 --> 01:07:01,120
tug of war between competing 
policies. 

1383
01:07:01,440 --> 01:07:04,720
On one side you have this sacred
perpetual duty to protect a 

1384
01:07:04,720 --> 01:07:06,720
client's secrets that's non 
negotiable. 

1385
01:07:07,080 --> 01:07:09,720
But on the other side you have 
the reality of the modern legal 

1386
01:07:09,720 --> 01:07:11,280
world. 
Lawyers need to be able to 

1387
01:07:11,280 --> 01:07:13,560
switch jobs without 
automatically disqualifying 

1388
01:07:13,560 --> 01:07:16,400
their entire new firm. 
And clients deserve the freedom 

1389
01:07:16,400 --> 01:07:19,800
to hire the lawyers they want. 
So screening is the compromise. 

1390
01:07:19,960 --> 01:07:22,880
It's the attempt to protect 
those secrets while allowing for

1391
01:07:22,880 --> 01:07:25,880
a mobile legal profession the 
revolving door. 

1392
01:07:26,080 --> 01:07:28,640
This is when a lawyer leaves 
government service and goes into

1393
01:07:28,640 --> 01:07:31,400
private practice. 
This scenario triggers a whole 

1394
01:07:31,400 --> 01:07:35,000
different rule, Rule 1.11, and 
you need to know it because it's

1395
01:07:35,000 --> 01:07:37,360
different and in some ways even 
tougher. 

1396
01:07:37,960 --> 01:07:41,120
So remember how we obsessed over
that substantially related 

1397
01:07:41,120 --> 01:07:43,080
standard? 
Well, for government lawyers, 

1398
01:07:43,080 --> 01:07:44,360
you can just throw that out the 
window. 

1399
01:07:44,640 --> 01:07:47,200
The standard here is much, much 
narrower. 

1400
01:07:47,280 --> 01:07:49,440
We're looking for a particular 
matter. 

1401
01:07:49,520 --> 01:07:51,920
This isn't about having general 
knowledge of, say, securities 

1402
01:07:51,920 --> 01:07:53,760
law. 
It's about having worked on that

1403
01:07:53,760 --> 01:07:57,040
specific SEC investigation or 
that specific government 

1404
01:07:57,040 --> 01:07:59,800
contract. 
It's all about a specific set of

1405
01:07:59,800 --> 01:08:02,800
facts and parties. 
And this slide really drives 

1406
01:08:02,800 --> 01:08:05,680
home the difference. 
Substantially related is broad. 

1407
01:08:05,720 --> 01:08:08,040
It's a prophylactic rule, a what
if test. 

1408
01:08:08,160 --> 01:08:10,760
What could you have learned? 
But particular matter, 

1409
01:08:10,920 --> 01:08:13,560
especially when combined with 
the requirement of personal and 

1410
01:08:13,560 --> 01:08:15,680
substantial participation, is 
narrow. 

1411
01:08:15,920 --> 01:08:18,640
It's a what did you do test. 
We're drilling down into the 

1412
01:08:18,640 --> 01:08:21,640
specific actions that lawyer 
actually took on that one 

1413
01:08:21,640 --> 01:08:24,080
specific case while they were 
working for the government. 

1414
01:08:24,479 --> 01:08:26,960
So just like in the private 
world, a government lawyer's 

1415
01:08:26,960 --> 01:08:29,319
conflict gets imputed to their 
new firm. 

1416
01:08:29,520 --> 01:08:32,800
But here's a twist For private 
firm hiring an ex government 

1417
01:08:32,800 --> 01:08:36,000
lawyer screening isn't just a 
good idea, it is mandatory. 

1418
01:08:36,160 --> 01:08:38,600
It is the only way to cure the 
conflict. 

1419
01:08:38,720 --> 01:08:41,359
There's no other choice. 
And this makes perfect sense, 

1420
01:08:41,359 --> 01:08:43,040
right? 
The public interest here is 

1421
01:08:43,040 --> 01:08:44,880
huge. 
We have to avoid even the 

1422
01:08:44,880 --> 01:08:47,479
appearance that a lawyer is 
cashing in on their government 

1423
01:08:47,479 --> 01:08:49,640
service. 
All right, we've covered a lot 

1424
01:08:49,640 --> 01:08:51,880
of ground. 
Now let's boil it all down into 

1425
01:08:51,880 --> 01:08:53,560
a systematic approach you can 
take with you. 

1426
01:08:53,960 --> 01:08:55,720
This is your checklist for the 
exam. 

1427
01:08:56,279 --> 01:08:58,399
Follow these steps and you won't
miss a beat. 

1428
01:08:59,000 --> 01:09:01,880
OK, here it is, step one and you
cannot skip this. 

1429
01:09:02,120 --> 01:09:04,720
What is the client's status? 
Current or former? 

1430
01:09:04,920 --> 01:09:07,399
That's your fork in the road. 
If they're a former client, move

1431
01:09:07,399 --> 01:09:09,760
to Step 2. 
Does the individual lawyer have 

1432
01:09:09,760 --> 01:09:13,000
a conflict under Rule 1.9? 
Use that two-part test. 

1433
01:09:13,000 --> 01:09:16,120
We discussed step three. 
If the lawyer does have a 

1434
01:09:16,120 --> 01:09:18,319
conflict, does it get imputed to
the firm? 

1435
01:09:18,600 --> 01:09:21,600
The default answer is yes, which
leads to Step 4. 

1436
01:09:21,800 --> 01:09:24,359
Can the firm fix it? 
Is screening available and was 

1437
01:09:24,359 --> 01:09:27,279
it done right? 
And finally, Step 5, always Kee 

1438
01:09:27,279 --> 01:09:29,760
your eyes eeled. 
Is a government lawyer involved?

1439
01:09:29,960 --> 01:09:32,960
Because if so, you're in Rule 
111 territory. 

1440
01:09:33,680 --> 01:09:36,520
Look, here's how you get the big
points on this kind of question.

1441
01:09:36,720 --> 01:09:40,080
Anyone can spot the basic issue.
The A+ answer comes from 

1442
01:09:40,080 --> 01:09:42,120
precision. 
You have to explicitly 

1443
01:09:42,120 --> 01:09:44,000
distinguish loyalty from 
confidentiality. 

1444
01:09:44,000 --> 01:09:46,319
Right at the start. 
You need to spit out the correct

1445
01:09:46,319 --> 01:09:49,080
definition of the substantial 
relationship test, and you must 

1446
01:09:49,080 --> 01:09:50,640
mention that it's an objective 
standard. 

1447
01:09:50,960 --> 01:09:53,560
When you talk about screening, 
hit all three requirements. 

1448
01:09:53,880 --> 01:09:56,120
And critically, you need to show
the greater you know the 

1449
01:09:56,120 --> 01:09:58,080
difference between the 
substantially related standard 

1450
01:09:58,080 --> 01:09:59,560
and the particular matter 
standard. 

1451
01:09:59,880 --> 01:10:02,080
Nailing these details is what 
separates a good answer from a 

1452
01:10:02,080 --> 01:10:04,520
great one, so we'll leave it 
there. 

1453
01:10:04,720 --> 01:10:07,080
You can see how the modern 
rules, especially with the 

1454
01:10:07,080 --> 01:10:10,520
allowance of screening, really 
lean into making it easier for 

1455
01:10:10,520 --> 01:10:13,240
lawyers to move around. 
It's all about promoting lawyer 

1456
01:10:13,240 --> 01:10:15,640
mobility. 
But it's worth asking, have we 

1457
01:10:15,640 --> 01:10:18,440
struck the right balance? 
Or, in a rush to make things 

1458
01:10:18,440 --> 01:10:21,640
practical for a modern legal 
market, have we chipped away at 

1459
01:10:21,640 --> 01:10:25,200
that foundational promise of 
absolute client confidentiality?

1460
01:10:25,800 --> 01:10:26,960
Something for you to think 
about.