So I want you to imagine stepping right into the middle
of a bustling high stakes epidemiology ward.
Oh wow. OK, setting a scene.
Yeah, you have these doctors tracking a highly contagious
virus, right? They are mapping out every
single person the infected individual has spoken to or
breathed on or even just shared a room with.
Because the whole goal is quarantine.
Exactly. You have to isolate the
contagion before it just, you know, spreads to the entire
hospital. And when you transition from the
world of, say, torts and contracts into the landscape of
legal ethics, specifically conflict analysis, you are
essentially stepping into that exact epidemiology ward.
That is a that's a really intense metaphor, but it works.
It really does because we are tracking a contagion.
But you know, the infection isn't a biological virus.
The infection is confidential client information.
Right. And the moment a lawyer absorbs
that information, they basically become a carrier.
Exactly, and that contagion metaphor perfectly captures the
stakes of what we are going to be exploring in this deep dive
today. It does, because if you look at
the American Bar Association model, Rules of Professional
Conduct, the entire regulatory framework is just obsessed with
containment. Oh, absolutely obsessed.
But to really understand how to quarantine this ethical
infection, we have to recognize a massive paradigm shift that
happens the exact second a client walks out your door for
the final time. Right, the transition from
current client to former client. Exactly because when you are
representing a current active client, your behavior is
governed by model rule 1.7, and the absolute heartbeat of rule
1.7 is loyalty. Undivided loyally.
Undivided you are their champion.
I mean, you cannot look left, you cannot look right.
But you know, representations eventually end, right?
Deals close, litigation settles, people move on, and when they
transition from a current client to a farmer client, rule 1.7
just it drops away and rule 1.9 takes over.
And the paradigm completely. Flips.
It completely flips, which is where.
The fatal trap really lies for anyone you know sitting for the
MPRE or facing a disqualification motion in
actual practice. Yeah.
Oh, I see it all the time with law students.
Right. And junior associates too.
They constantly try to apply a loyalty analysis to a former.
Client they do. They argue that a lawyer is
being like disloyal by taking a new case.
But loyalty is a mortal thing. It literally dies when the
retainer agreement expires. That's a great way to put it.
What survives the death of the representation is the duty of
confidentiality. I mean, the former client rules
are almost entirely stripped of loyalty concerns.
Right. They exist solely to ensure that
the secrets the client gave you during the relationship are
never weaponized against them later.
The eternal duty of confidentiality.
It's the bedrock of the whole legal profession.
It really is. I mean, think about it, if
clients believe their darkest secrets or their financial
vulnerabilities have an expiration date.
They'll just stop telling their lawyers the truth.
Exactly. And the adversarial system
completely collapses with without candor.
So our mission for you today is to rigorously map this out.
We have a lot of ground to cover.
We really do. We have to look at how this
infection attaches to the individual lawyer under Rule
1.9. Right, patient zero.
Then we have to examine what happens when that infected
lawyer walks into a firm of, say, 500 other attorneys.
Which triggers the imputation rules under 1.10.
Exactly. And finally, we're going to look
at the specialized quarantine protocols for government lawyers
entering private practice under Rule 1.
One point LEB. So let's start with patient
zero, the individual lawyer. The black letter law of Rule 1.9
a. Right Rule 1.9 A lays out a very
specific 3 pronged test to determine if a lawyer is
ethically compromised from taking on a new client.
Because it isn't just a vague sense of this feels wrong.
Right. No, no, there are mandatory
elements. A former client conflict exists
if the lawyer represents a new person in the same or a
substantially related matter. OK, that's prong one.
Right prong 2 The new person's interests are materially adverse
to the former client and prong. 3.
The lawyer failed to get informed consent, confirmed in
writing, from that former client.
Those 3 prongs are just ironclad gatekeepers.
They really are. And that requirement for
informed consent to be confirmed in writing, that is an area
where practitioners stumble so often.
Oh, constantly. Because we aren't talking about
a casual phone call where the former client says, yeah, sure,
I don't care if you sue me. Right.
The rules require a really deep, meaningful consultation about
the material risks involved. The client has to understand
exactly what confidential information is at stake.
Exactly, and how it could theoretically be used against
them. Only after that consultation can
the waiver be valid. And even then, it has to be
memorialized in writing to prevent convenient amnesia later
on. Because people tend to forget
what they agreed to when things get heated.
Exactly. But the real friction, the area
that absolutely melts the brains of law students and practicing
attorneys alike, isn't just the prohibition on taking the case.
Right, it's the handling of the information itself.
Yes, governed by rules 1.9 D and 1.9 C, This is where that shift
to confidentiality takes center stage.
And the distinction between the word using and the word
revealing becomes incredibly fraught.
It is a linguistic and ethical minefield.
Let's break it down. Under Rule 1.9 B, an attorney is
strictly prohibited from using information relating to the
representation to the disadvantage of the former
client. So for example, if you know
their settlement bottom line from a previous negotiation.
You cannot use that knowledge to squeeze them in a new, unrelated
negotiation. That makes perfect sense.
But rule 1.9 B does provide a specific carve out.
You can use that information if it has become generally known.
Oh, OK. So if it's blasted across the
financial news networks, it's fair game to use.
Exactly, but the traps snaps shut when you look at rule 1.9 C
which dictates that a lawyer shall not reveal information
relating to the representation. Wait, is there a carve out for
revealing? It no, there is no generally
known exception attached to revealing.
It which seems utterly bizarre when you try to map it onto real
world behavior. Bizarre is the right word.
Think about this. If I'm an attorney who just want
a landmark high profile criminal appeal, the appellate court is
going to publish a 40 page opinion.
Right. And that opinion is going to
detail every single fact of the case.
The timeline, the evidence, the client's background.
It is a completely public, searchable government document.
Anyone can read it? Anyone.
So a few years go by and I decide I want to write a law
review article, or maybe just a detailed blog post analyzing the
nuances of my former clients published case.
Under a strict reading of Rule 1.9, CI am forbidden from
independently discussing a public court document.
You are forbidden, and the disciplinary boards enforce that
prohibition with shocking rigidity.
It's wild. We rely heavily here on a
brilliant piece of scholarship published in the Vermont Law
Review, which directly attacks this paradox.
The article titled On the absurdity of Model Rule 1.9.
Aptly titled, right? The author points out that the
modern interpretation of information relating to the
representation is so expansive that it swallows everything.
Regardless of the source. Right.
It doesn't matter if the facts were shouted in open court with
reporters present or if they are sitting on the front page of The
New York Times. The duty of confidentiality is
treated as perpetual and all-encompassing.
The Vermont Law Review critique is so fascinating because it
tackles the basic linguistics of the word reveal.
Right. What does it actually mean to
reveal something? Well, if you look at the
dictionary definition, to reveal something means to make a secret
known, to uncover something hidden.
You cannot logically spoil the ending of a movie that came out
50 years ago. Exactly.
The culture already knows Darth Vader is Loop's father.
It's linguistically impossible to reveal something that is
universally known. Yet the ethics committees
essentially treat the attorney as being under a permanent,
lifelong gag order regarding the client's life.
How did we even get here? The historical context really
explains how we ended up in this semantic trap.
If we go back to the predecessor of the current model rules, the
old ABA Model Code of Professional Responsibility, the
phrasing was much tighter. OK, what did the old code say?
The old. Code protected a client's
confidences and secrets. A confidence was information
protected by attorney-client privilege, and a secret was
other information the client requested be held inviolate or
which would be embarrassing or detrimental if disclosed.
See, that framework made logical sense.
It did. If something was public
knowledge, it was no longer a secret so you could talk about
it. But then the ABA drafted the new
model rules. And they vastly expanded the
scope to all information relating to the representation,
specifically to cast the widest possible net of protection.
Which creates incredible exam fodder.
You are inevitably going to see a fact pattern on a professional
responsibility exam where an attorney discovers information
about a former client by reading the morning newspaper.
Or pulling a publicly filed pleading from a courthouse
database. The prompt is baiting you.
It wants you to jump to the conclusion that because the
information is in the public domain, the duty of
confidentiality has evaporated. But it has not.
It has not. While you might be able to use
generally known information in a legal proceeding, you cannot
independently reveal or broadcast it like.
Writing a tell all book or giving a podcast interview.
Exactly. Not without explicit written
consent from the former client. And the policy justification for
this, despite the absurdity of the public record trap, is
really rooted in client trust. Because the legal profession
demands that clients bare their souls.
Right. They have to confess their worst
mistakes, their deepest fears and their most damning documents
to their lawyers. And if there is even a sliver of
a chance that a lawyer could later act as a public
commentator on those difficult moments, the client will
withhold information so the. Rule is over inclusive by
design. Right, so we've established that
the contagion is permanent. The secrets belong to the client
forever. But how do we actually prove
that a new case threatens those specific secrets?
This brings us to the operational machinery of former
client analysis, these substantially related tests.
A big one. It's huge, yeah, because it's
not enough to simply point out that you used to represent the
person you are now suing. Right, you have to prove an
intrinsic dangerous connection between the old work and the new
work. And this is where we have to
completely remove human memory from the equation.
The standard is entirely objective.
I have actually seen attorneys attempt to defeat a
disqualification motion by submitting A sworn affidavit.
Really saying what? Saying I handled that merger 15
years ago, I have reviewed my files and I swear under penalty
of perjury that I do not remember a single confidential
fact about that client's business.
And how do courts handle? That they universally reject it
of. Course they do, because memory
is subjective, it's flawed and it's completely impossible to
cross examine. Right, You can't put an MRI on a
lawyer's brain to prove they forgot the secret recipe.
Precisely so. The modern majority approach,
the test adopted by almost all jurisdictions, asks A purely
objective hypothetical question and.
What is that question? Could confidential information
normally have been obtained in the former representation that
would materially advance the new client's position in the current
matter? Normally that's the operative
word. Yes.
We don't care what you actually learned.
We care about what a lawyer doing that specific job in that
specific context typically learns.
And if the answer to that objective question is yes.
If a lawyer drafting that kind of contract or defending that
kind of lawsuit normally absorbs the type of confidential facts
that would be a weapon in the new case, the court does
something drastic. They adopt an irrebutable
presumption. Yes, the irrebutable
presumption. It's a fascinating legal
mechanism. It really is because in most
areas of law, presumptions can be challenged, right?
Usually yes. If the law presumes something,
you are allowed to introduce evidence to prove the
presumption. Wrong, but not here.
Not here. If the matters are deemed
substantially related, the court conclusively presumes that the
lawyer did receive the disqualifying confidential
information. The gavel comes down.
The gavel comes down, you are disqualified, and no amount of
evidence, testimony or pleading will allow you to argue
otherwise. There's a 7th Circuit case
Analytica Inky NPD Research that is the absolute benchmark for
this doctrine. Oh Judge Posner's opinion.
Yes, Posner's reasoning perfectly articulates why the
presumption has to be irrebutable.
Walk us through his logic. Well, if we allowed a lawyer to
argue I didn't actually learn any secrets, how would the
former client prove they were lying?
That's the paradox. Right.
The former client would be forced to stand up in open court
and say, yes, you did. You learned XY and Z.
They would have to broadcast the exact confidential secrets
they're trying to protect just to win the disqualification
motion. It would be a nightmare.
So the irrebutable presumption protects the client from having
to destroy their own confidentiality to save it.
It is such an elegant solution to a massive procedural problem.
It is, the Analytica court emphasized, that we must look
entirely at the relationship between the matters themselves.
Let's apply this objective standard to a practical
scenario. We have a fantastic fact pattern
drawn from Nebraska Ethics Opinion 1210.
The rural real estate developer case.
Yes. So we have an attorney
practicing in a rural county. This attorney is hired by a real
estate developer to draft the restrictive covenants for a
brand new residential subdivision.
OK, so the attorney drafts the rules governing lot sizes,
architectural guidelines, HOA dues, all that stuff.
Exactly a few years pass, the representation ends, the
developer moves on to other projects.
Standard transactional work. But down the line, the neighbors
living in that subdivision become furious with the
developer over a zoning issue. And they want to sue him to
invalidate the very covenants he created.
Right. And who do they want to hire?
The exact same attorney who drafted those covenants in the
first place. Ouch.
Now, the attorney's defense in this scenario is always the
same, isn't it? Oh, totally.
They argue that drafting restrictive covenants is
essentially just administrative legal plumbing.
Right, I took a standard boilerplate template, changed
the names, updated the lot numbers, and filed it with the
county clerk. I didn't learn any deep, dark
corporate secrets. I just did paperwork.
But under the substantially related test, that defense
disintegrates. It completely falls apart.
The Nebraska Advisory Committee walked through the objective
analysis. Florida State.
They didn't ask if the attorney remembered specific secrets.
No, they asked, what does a lawyer normally learn when
drafting covenants for a developer?
Well, during that process the lawyer normally has extensive
conversations with the client about their long term goals for
the land. Their financial vulnerabilities
regarding the infrastructure. And most importantly, their
internal attitudes about the legal enforceability of those
restrictions. The lawyer knows where the
developer believes the legal loopholes are because the
developer asked the lawyer to try and close them.
So if the attorney now switches sides and represents the angry
neighbors, they are armed with the psychological and strategic
playbook of the developer. That knowledge would undeniably
materially advance the Neighbors lawsuit.
The matters are substantially related.
The irrebutable presumption locks in and the attorney is
disqualified. What's also crucial about that
Nebraska opinion is how it handles the concept of waiver.
Oh yes, the limited waiver attempt.
Right in the fact pattern, the developers New Litigation
Council sent an e-mail saying we will waive the conflict, but
only for the limited purpose of engaging in settlement
negotiations. And what did the committee say?
They ruled that was insufficient.
Informed consent must be absolute, it must be in writing
and the client must be fully apprised of the terrifying
reality that their former lawyer is about to sit across the table
from them. It's a great example of
transactional work colliding with litigation.
It is, but we also need to explore the boundaries of the
test when dealing with pure litigation defense.
The scenario you call the nursing home trap.
Yes, heavily analyzed an ABA Opinion 497.
Imagine a defense attorney whose entire practice is representing
a massive nursing home conglomerate.
They defend the facility in a slip and fall negligence case.
The plaintiff slipped on a wet floor in the cafeteria.
The case settles. Standard premises liability,
right? Three years later, the attorney
leaves defense work and joins A plaintiff's personal injury
firm. A new client walks in.
And they want to sue the nursing home.
Exactly. They want to sue the exact same
nursing home facility, but the facts are entirely different.
This is a medical malpractice claim regarding a severe
medication dosage error by a late night nurse.
Now the instinct for a lot of students is to immediately
scream conflict. Because it's the same defendant.
Same defendant, same building, same broad category of tort law.
But the courts often pump the brakes here.
Why is that? Because defending a wet floor
premises liability case does not normally give an attorney
confidential, actionable insight into the pharmaceutical
protocols and nursing staff of training manuals of the
facility. The facts are distinct.
Highly distinct general ambient knowledge that the nursing home
has a cafeteria in the legal department isn't the type of
specific material confidence that triggers the irrebutable
presumption. So the matters are not
substantially related. Generally, no.
However, and this is big, however, the analysis flips
entirely if the scope of that initial slip and fall
representation was unusually broad.
How broad? Let's say during the defense of
that wet floor case, the attorney was brought into the
inner sanctum of the nursing home's corporate structure.
They were given total access to the Global Risk Management
Playbook. Yes, they learned exactly what
the corporations financial pain points are, how they calculate
the lifetime value of a settlement, and which specific
executives are terrified of taking the stand.
That is no longer ambient knowledge.
That is confidential strategic intelligence.
If the attorney possesses the master playbook on how the
defendant settles cases, that information will materially
advance any future plaintiffs claim against them.
Regardless of whether it's a slip and fall or a medication
error. Exactly that broad exposure
pushes the matters directly into the substantially related zone.
So the objective test requires us to meticulously map the
contours of what was normally learned.
Right, but establishing that the matters are related is only half
the battle. The rule also demands that the
new clients interest be materially adverse to the former
client. And adversity in the legal
ethics realm is a highly nuanced concept.
It isn't just a simple equation of plaintiff versus defendant.
Right. ABA Opinion 497 provides a
fantastic taxonomy of material adversity, breaking it down into
3 distinct categories. Let's go through them.
The first category is the most intuitive.
Being on the opposite side of a litigation or a transactional
negotiation. Very straightforward.
You cannot represent the husband in a divorce and then three
years later represent the wife in a petition to modify the
alimony. Or represent a tech startup in
their initial public offering and then represent a hostile
private equity firm trying to execute a leveraged buyout of
that same startup. The adversity is direct,
structural and obvious. But the second category is
slightly more insidious. Attacking your own prior work.
Yes, this loops perfectly back to our Nebraska developer
example. You cannot draft a complex trust
document for a wealthy patriarch and then after he passes away,
represent a disgruntled heir seeking to have that exact same
trust declared invalid due to undue influence.
You are inherently taking an adverse position to the legal
architecture you are hired to build and secure.
You cannot burn down the house you were paid to construct.
I love that phrasing. Now, the third category of
material adversity. This one carries profound
psychological weight. Examining a former client in a
legal proceeding. Imagine you represented a
business owner in a quiet, confidential tax dispute with
the IRS. OK, very sensitive stuff.
Years later, you are representing a plaintiff in a
fraud lawsuit against a different company, and that
former client is called as a key witness.
Oh wow. As an advocate, your job during
cross examination is to impeach their credibility, expose their
inconsistencies, and dramatically tear them down on
the stand. Which means you are inevitably
going to draw upon the psychological insights, the
nervous tics and the vulnerabilities you observe when
they were sitting in your office trusting you with their tax
secrets. Even if you don't use specific
confidential facts, you are using your intimate knowledge of
their character to destroy them in public.
That is the zenith of material adversity.
It absolutely is, and ethics scholars are very careful to
draw a boundary here. How so?
Material adversity requires specific tangible legal or
economic harm. Simply taking a legal position
in one case that establishes A precedent that might indirectly
harm a former client's broad industry interests somewhere
down the line, that is not enough.
The collision has to be specific, right?
Let's test the limits of that adversity with a scenario that
keeps modern solo practitioners awake at night.
Oh, I know where you're going with this.
The vengeful client and in the Yelp review.
The absolute nightmare stereo. It is.
We are drawing from San Francisco Bar Association
opinion comma 14-1. But variations of this issue
plague every jurisdiction. Walk us through the setup.
An attorney represents a client in a messy, emotionally charged
family lock case. The outcome is poor, mostly due
to the client's own behavior. Naturally, the.
Representation ends. The former client goes home,
logs onto Avo, Yelp and Google reviews, and unleashes a torrent
of public vitriol. They leave a scathing one star
review calling the attorney incompetent.
Claiming the attorney ignored their calls, mismanaged the
evidence, fundamentally botched the case.
But crucially, the client does not reveal any specific
confidential information, right? And just engage in general
highly damaging mudslinging. But the attorney's livelihood
depends on their online reputation, which is now
actively bleeding. So the question is, how does the
duty of confidentiality operate when the former client is the
one attacking? This scenario is the ultimate
stress test for the fiduciary duty.
It pits a human being's fundamental instinct for self
preservation against an ancient, unyielding ethical mandate.
The San Francisco opinion relies on the notoriously strict
California standard, specifically Business and
Professions Code section 6068 E. The language of that statute is
almost poetic in its severity. What does it say?
It mandates that an attorney must maintain and violate the
confidence and at every peril to himself or herself, to preserve
the secrets of his or her client.
At every peril to himself, the law is explicitly telling the
lawyer that they must absorb the damage.
They must act as a human shield for the client's secrets, even
if it destroys their own reputation.
But wait, there's a recognized self-defense exception in the
model rules and an evidence law, isn't there?
There is. If a client accuses an attorney
of malpractice, the attorney is allowed to use confidential
information to defend themselves.
They are, but the procedural context is everything.
The exception is incredibly narrow.
How narrow? It only triggers when there is a
formal legal or disciplinary proceeding initiated against the
attorney. OK, so if the former client
files a malpractice lawsuit in civil court?
Or, if they file a formal grievance with the State Bar
Disciplinary Committee, then the attorney is absolutely allowed
to Pierce The Veil of confidentiality.
They can submit the private e-mail, the billing records and
the confidential memos to the judge or the committee to prove
they provided competent representation.
Because the rationale is that a client cannot use
confidentiality as a sword to attack the lawyer in court,
while simultaneously using it as a shield to prevent the lawyer
from fighting back. That makes perfect sense, but a
Yelp review is not a court of law.
No, it is not. AVO is not a disciplinary
committee. The court of public opinion has
no judge, no rules of evidence and no protective orders to seal
the documents. So if the attack happens purely
online, outside of a formal proceeding, the self-defense
exception never activates. Exactly.
The opinion makes it painfully clear the attorney cannot log
onto the review site and post a point by point rebuttal exposing
the client secrets. They cannot say actually we lost
because you hid assets in a, came in count and lied to the
judge. Revealing the details of the
representation to save face online is a direct violation of
Rule 1.9 C. Which means the attorney just
has to sit there and take the beating.
Well, they're not entirely defenseless, but their response
must be incredibly constrained. What can they actually do?
They're permitted to post a general proportionate reply.
They can state that they fundamentally disagree with the
factual assertions in the review, and they can explicitly
note that their ethical obligations regarding client
confidentiality prevent them from discussing the specifics of
the case in a public forum. That's pretty smart.
Any prospective client reading that response will usually read
between the lines and understand that the lawyer is taking the
High Road. Exactly.
But the substantive secrets of the case remain locked away.
This is a highly testable area because examiners love to pit
raw human emotion against rigid doctrine.
Oh, they love it. The exam trap is creating a
scenario where the client's public lies are so egregious and
the damage to the lawyer is so severe that the student feels
morally compelled to let the lawyer defend themselves in the
press. You must resist that urge.
You really must The duty of confidentiality survives the
representation, it survives the information becoming public, and
it survives the former clients unprovoked hostility.
So we have thoroughly mapped how the contagion operates within
patient zero. We understand the objective
presumptions and the strict limitations on adversity.
But the modern practice of law rarely involves solitary
practitioners working in isolation.
Right attorneys operate within complex ecosystems.
Law firms, Corporate legal departments, massive global
partnerships. Which requires us to pivot to
the second major regulatory framework, imputation under Rule
1.10. We have to examine how the
contagion spreads. If one attorney in a firm is
disqualified under Rule 1.9 because they possess a former
client secrets, what happens to the attorney in the office next
door? Well, the foundational
assumption of Rule 1.10 is deeply pragmatic.
It assumes that a law firm is essentially a single Organism.
The rules presume that attorneys within a firm share a common
economic interest in the firm's overall financial success.
They share access to the same cloud based document management
systems. They share paralegals and
support staff. And, crucially, they talk.
They do. They discuss legal strategies
over coffee. They bounce ideas around the
conference room. Because of this inherent
interconnectedness, roll one point SAT establishes A harsh
default baseline. And that baseline is if one
lawyer in a firm is conflicted out of a matter, that conflict
is automatically imputed to every single other lawyer in the
firm. One infected attorney
quarantines the entire building. It's brutal, yeah, But you know,
the regulatory bodies recognize that applying this rule with
unqualified rigor would grind the legal economy to a halt.
Absolutely. If a firm of 2000 lawyers across
20 cities was completely disqualified every time a single
associate had a tangential conflict from a previous job, no
could ever take a new case. Therefore, Rule 1.10 carves out
essential exceptions. And the first vital carve out is
the personal interest exception. This exception requires us to
differentiate between conflicts rooted in confidential client
data and conflicts rooted in an attorney's personal life.
Give us an example. OK, let's say I am an
environmental activist. I have deeply held foundational
moral beliefs against clear cutting ancient forests.
Noble cause. My firm is approached by a
massive temper conglomerate to defend them against the EPAI.
Know in my heart that my personal disgust for the
client's business would materially limit my ability to
represent them zealously. So under Rule 1.7 you have a
concurrent conflict of interest. Right, I am personally
disqualified, but does my ideological objection infect my
partners? It does not, provided we meet a
specific condition. What's the condition?
The rule states that if a conflict is purely personal to
the disqualified lawyer and it does not present a significant
risk of materially limiting the representation of the client by
the remaining lawyers in the firm.
Then the conflict is not imputed.
Right, so assuming your environmental activism doesn't
create a toxic environment that coerces or distracts your
partners, they are free to take the timber company's money and
defend the case. Another classic, highly testable
example of a personal conflict is marriage.
Oh, family dynamics. Always a mess.
Let's say a senior litigator at my firm is married to the lead
prosecutor at the district attorney's office.
OK, high-powered couple. If our firm takes on a criminal
defense case prosecuted by that specific spouse, our litigator
is obviously conflicted out. You cannot have spouses fighting
each other in front of a jury while sharing a bank account at
home. But did that marital conflict
mean our entire defense firm is barred from taking cases against
the DA's office? No, the marital conflict is
inherently personal. As long as the conflicted spouse
is isolated from the case, the rest of the firm can proceed.
So personal interest exceptions are relatively straightforward.
The D imputation analysis becomes exponentially more
complicated when we look at the modern reality of corporate law
in in house counsel. Yes, we have a phenomenal
resource here in California, Opinion 2190003, which explores
how the contagion operates when a lawyer's firm is actually a
corporate legal department. The in house counsel mobility
issue is fascinating because it happens constantly in the tech
sector. Let's walk through a
hypothetical based on that California opinion.
All right, imagine a high level attorney who serves as deputy
general counsel for Apple. They have a brilliant career
there but eventually they are poached.
Naturally. They leave Apple and accept a
lucrative position in the legal department at Samsung, a direct,
fierce economic competitor. And Apple's outside counsel
immediately screams conflict. They argue that because the
attorney moved to a direct competitor, the entire Samsung
legal department is now contaminated with Apple's
secrets and must be disqualified from any litigation against
Apple. The instinct is understandable,
but the California opinion carefully deconstructs why that
argument fails. 1st we have to define who the former client
actually is in the corporate context.
The former client is the old employer Apple.
Right. Simply moving to an economic
competitor does not, in a vacuum, trigger a Rule 1.9
conflict. Economic rivalry is not a legal
conflict. The conflict only crystallizes
if the moving attorney personally represented the old
company on a matter that is factually and legally identical
or substantially related to a specific new matter at the new
company. Or if they acquired material
confidential information regarding that exact dispute.
So the scope of their previous portfolio is the determining
factor. Explain that.
Well, if the attorney who moved from Apple to Samsung was
strictly an employment lawyer. If they spent 10 years doing
nothing but negotiating severance packages and defending
wrongful termination claims for HR, they never gained
confidential insight into Apple's semiconductor patent
prosecution strategy. Because they don't possess the
relevant secrets, they are not. Infected.
Therefore, they wouldn't be conflicted out of handling a
patent infringement lawsuit against Apple for Samsung, and
there is no conflict to impute to the rest of Samsung's legal
department. However, the analysis pivots
sharply if the moving attorney was involved in strategic high
level litigation. Right.
If that attorney was part of the brain trust that developed
Apple's global intellectual property defense playbook,
they're carrying highly toxic material confidences.
And if Samsung then tasks their legal department with suing
Apple over those exact patents? That specific attorney is
personally disqualified under Rule 1.9.
And because a corporate legal department is treated as a firm
under the rules, that disqualification would by
default impute to the entire Samsung legal apparatus.
Which would be catastrophic for Samsung.
Unless, of course, they utilize the ultimate defense mechanism
to break the chain of imputation.
Ah yes, and this is where we enter the most heavily litigated
and frequently tested area of professional responsibility.
We are looking at the laterally moving lawyer and the mechanics
of the ethical screen codified in Rule 1.0.
A 2. The modern legal market thrives
on mobility. Associates move for better
bonuses. Partners move to expand their
book of business. If imputation applied,
absolutely. A lawyer who worked on a massive
antitrust case at Firm A could never move to Firm B if Firm B
represented the embossing. The lawyer would be an
unemployable pariah. Right.
So to prevent this radical curtailment of professional
mobility, the model rules allow a firm to hire a tainted lawyer
without disqualifying the entire office and.
Provided they construct an impenetrable ethical screen,
historically referred to as a Chinese wall.
But building that screen isn't just about sending a polite
e-mail asking everyone to play nice.
Not at all. Rule 1.10 A 2 establishes 3
mandatory mechanical conditions that must be perfectly executed
to survive a disqualification motion.
I tell students to memorize these three conditions because
examiners will test every single nuance.
Let's Hickam, the first condition is that the screening
must be timely and effective. Now, what does effective
isolation actually look like in a modern law firm?
We can look to the landmark case Kirky V First American Title for
the blueprint of an effective screen it requires.
Multiple layers of verifiable isolation.
First, there must be physical separation.
The tainted lawyer cannot have an office next to the team
handling the conflicted matter. They should ideally be on a
different floor or in a different building. 2nd, and
increasingly more critical, there must be absolute digital
isolation. The firm's IT department must
erect firewalls within the document management system.
The screen lawyer's credentials must be explicitly locked out of
any folder, database, or billing record associated with the case.
If they search for the clients name on the firms intranet it
should return 0 results. Finally, there must be
institutional enforcement. The firm must circulate explicit
memoranda to all personnel, partners, associates, paralegals
and administrative staff. Forbidding them from discussing
the matter with the screened lawyer.
And the most important word in that first condition is timely.
Yes, you cannot hire the attorney, wait three months for
the opposing counsel to discover the conflict and file a motion
to disqualify and then build the wall.
The screen must be erected before or at the exact moment
the tainted lawyer walks through the door on their first day.
If the contagion is allowed to breathe the open air of the firm
for even a single afternoon, the presumption of shared
confidences locks in and the screen is useless.
Punctuality is unforgiving in this context.
So what's the second mandatory condition?
It focuses on the financial incentives.
There can be no fee sharing. The screened lawyer cannot
receive any portion of the fee generated by the conflicted
matter. Now, this requires some
practical clarification. Doesn't mean the lawyer works
for free. They can still receive their
predetermined fixed annual salary.
If they are a partner, they can still receive their standard
baseline partnership draw based on the overall profitability of
the firm. What the rule prohibits is a
direct, traceable financial reward tied to the outcome of
the case they are isolated from. They cannot receive a specific
performance bonus or a percentage cut of the
contingency fee. One in the conflicted matter.
The goal is to remove any subconscious financial
temptation the lawyer might have to secretly pass a note under
the door to help their new firm win.
Follow the money. It is a reliable metric for
ethical compliance. And the third and final
mandatory condition. Prompt written notice to the
affected former client. The firm must send a formal
communication to the former client detailing the exact
conflict. Outlining the specific screening
procedures that have been implemented.
Providing sworn certifications of compliance from both the
screened lawyer and the firm's management.
And agreeing to respond to any reasonable inquiries from the
former client regarding the integrity of the screen.
Now I want to aggressively underline a distinction here for
anyone taking an exam. Oh, this is a huge trap the.
Requirement is notice, it is not consent.
The hiring firm does not have to ask the former client for
permission to implement the screen.
They simply have to inform them that it is happening, giving the
former client enough transparency to verify that the
quarantine is real. That distinction represents a
massive policy compromise. Explain the policy behind it.
If the rules required the former client's consent, the former
client would hold absolute veto power over their former
attorney's career. They could simply refuse out of
spite, making the attorney unhireable.
The notice requirement balances the former client's right to
know their secrets are protected with the attorney's right to
participate in the free market of legal talent.
That is the policy justification, but I want to
challenge this from the perspective of a civilian, a non
lawyer. Put on your former client hat.
OK, let's say I am the former client.
Few years ago, I sat in the room with this attorney and confessed
my deepest, most devastating financial vulnerabilities so
they could defend me. Right.
Now I am being sued by a massive corporate law firm and I find
out that my former attorney just took a lucrative partnership at
that exact firm. You're not going to like that.
No, no. You can send me all the sworn
certifications you want. You can tell me about the IT
firewalls and the different floors.
The reality is. The person holding the blueprint
to my destruction is riding the elevator and eating in the
cafeteria with the lawyers actively trying to destroy me.
Regardless of the technical mechanics, doesn't that
inherently look corrupt to the general public?
Well. It really does.
Well, you have just articulated the fault line of the most
profound jurisdictional split in the realm of professional
responsibility. The appearance of impropriety.
Yes, and how a state Supreme Court weighs that subjective
appearance against the objective mechanics of a screen dictates
entirely whether lateral screening is permitted in that
jurisdiction. We have to explore this split
deeply because depending on what state you intend to practice in
or what states law and exam question applies, the exact same
fact pattern will yield 2 completely opposite results.
Precisely the legal landscape is divided into two main camps.
The first camp follows the majority or modern rule.
This includes jurisdictions that have fully adopted the updated
ABA Model Rules. These states accept the
mechanical reality of Rule 1.10 A 2.
They believe that if a firm implements A timely, verifiable,
airtight ethical screen, the risk of the contagion spreading
is empirically neutralized. They have made a calculated
policy decision. The concrete benefits of
promoting lawyer mobility, allowing clients or free choice
of counsel, and preventing disqualification motions from
being used as tactical harassment outweigh the abstract
theoretical fear that it simply looks bad to the public.
But there's a very vocal, very stubborn second camp.
Yes, the jurisdictions adhering to the stricter historical rule.
These states outright reject the concept of ethical screening for
private firm lateral moves. They cling to a near absolute
rule of firm wide imputation and their philosophy if he aligns
perfectly with your hypothetical clients paranoia.
You can never guarantee a screen is 100% effective.
Human beings gossip. Mistakes happen.
And more importantly, the bedrock of the legal system is
the public's confidence in its integrity.
If the public believes the system is rigged, the system
fails. We have an extraordinary case
study in our sources that illustrates the devastating
power of this stricter rule. The Tennessee Supreme Court
case. Clonard V Blackwood The
narrative of this case reads like a legal thriller, and it is
the absolute poster child for the appearance of impropriety.
Standard. Walk us through the timeline of
this disaster. The timeline is everything.
Yeah. The saga begins with a highly
respected attorney named Macklin Davis.
Davis is a senior partner at a prominent firm called Waller.
OK, Davis at Waller. During his tenure at Waller,
Davis represents the Blackwood family in various corporate and
personal matters. He builds a deep relationship of
trust with them. Eventually, Davis decides to
leave the Waller firm and join a different practice, the Baker
Firm. OK, so Davis is now at the Baker
firm, The Blackwoods. His loyal clients follow him
there. While at the Baker firm, the
Blackwoods find themselves embroiled in a bitter, complex
boundary dispute against a neighboring family, the
Clinards. The Blackwoods hire Davis to
defend them. Davis dives into the case.
He learns every single confidential detail regarding
the Blackwoods land, their strategy and their bottom line
in the litigation. He is fully infected with their
secrets. But then procedural reality
intervenes. Davis discovers a separate,
unrelated conflict of interest that forces him to withdraw from
representing the Blackwoods in the boundary dispute.
The Blackwoods are forced to hire brand new counsel to defend
them. Meanwhile, the Clinards, the
plaintiffs suing the Blackwoods, need a law firm.
And who do they hire? They hired Davis's Old Firm,
Waller. Let's pause and check the board.
The Waller firm is actively prosecuting a lawsuit against
the Blackwoods. Macklin Davis, the man who knows
all the Blackwoods secrets regarding this exact lawsuit, is
safely across town working at the Baker firm.
There is no conflict, yet the contagion is isolated.
But then the lateral move happens.
Davis decides he wants to go back to his roots.
He leaves the Baker firm and returns to Waller.
He walks back into the very firm that is actively prosecuting his
former clients, the Blackwoods, in the exact same boundary
dispute he used to defend them in.
The Tennessee Supreme Court used a brilliant baseball metaphor to
describe this. Oh I love this quote.
They said Davis didn't just switch teams, he switched teams
in the middle of the game after spending the first few innings
in the opposing dugout learning all of their secrets, signs and
strategies. It is an incredibly aggressive
lateral move. Now, to their immense credit,
the Waller firm recognized the radioactive nature of this
conflict. They did not ignore.
It no they implemented a massive textbook ethical screen before
Davis ever set foot back in the building.
They circulated explicit memorandums forbidding any
attorney or staff member from discussing the Clinard V
Blackwood case with Davis. They restricted his access to
the digital network. They physically placed his
office on an entirely different floor, separated by at least
three other offices from any attorney touching the
litigation. They placed brightly colored
warning labels on every single physical file folder related to
the case that read Do not discuss with Macklin Davis.
And they ensured he received absolutely no portion of the
fees generated by the lawsuit. By every objective metric, it
was an airtight, flawless screen.
So if this case had been litigated in a modern model
rules jurisdiction, Waller survived.
They followed one point AA 2 to the letter.
The presumption of showed confidence is rebutted, the
imputation is broken, and they get to keep litigating the case.
The trial court actually agreed with that analysis.
Wait, really? Yes.
The trial judge looked at the brightly colored folders in the
firewalls and concluded that the presumption of shared
confidences have been successfully rebutted.
The screen worked mechanically. But the Tennessee Supreme Court
stepped in and pulled the emergency brake.
They invoked an older standard, specifically ethical
consideration 9 to 6, which dictates that a lawyer owes a
solemn duty to avoid not only professional impropriety but
also the mere appearance of impropriety.
Which brings us right back to the paranoia of the former
client. Yes, but how did the court
define appearance? Because appearance is entirely
subjective. If my former client is a deeply
paranoid person, everything looks improper.
The standard can't just be whatever makes the client
uncomfortable. The court recognized that
danger. They acknowledge that the
standard must be objective, not subjective.
So what's the objective metric? They ruled that the appearance
of impropriety must be evaluated from the perspective of a
reasonable layperson, an ordinary knowledgeable citizen
acquainted with the facts. So the court imagined an
ordinary citizen looking at the totality of the circumstances.
An attorney learns all the secrets of a family's defense,
withdraws, and then joins the firm, actively trying to destroy
that family in the same case. And the court concluded that no
matter how many brightly colored stickers you put on a file
folder, an ordinary citizen would view a law firm switching
sides in the middle of a war to be fundamentally, deeply
objectionable. Wow.
And what was the remedy? The court stated that the taint
of the appearance of impropriety was so severe and the threat to
the public's perception of the legal system so profound, that
it could only be purged by the most extreme remedy available.
Total disqualification of the entire Waller firm.
The mechanical screen kept the physical secret safe, but it was
utterly powerless to save the firms moral image.
The Clinard case is a stark warning.
You can follow every mechanical rule perfectly, build a flawless
wall, and still face catastrophic disqualification
because your jurisdiction prioritizes optics over
mechanics. If you are analyzing A lateral
move on an exam, you must instantly identify which sandbox
you are playing in. If the prompt indicates you're
in a modern model rules jurisdiction, walk through the
screening mechanics. If the prompt explicitly
mentions a jurisdiction that adheres to the historical
appearance of impropriety standard, the firm is dead in
the water. And that concept, the idea that
the perception of integrity is just as vital as actual
integrity, provides a perfect bridge to our final substantive
framework. Yes, moving from the private
sector to the public sector. Up to this point, we have been
discussing the private sector, where the debate centers on
balancing client protection against the realities of
corporate capitalism and lawyer mobility.
But when an attorney moves between the private sector and
the government, the entire philosophy of the rules changes.
This brings us to Rule 1.11, the revolving door.
The government rules are fundamentally different because
the stakes are different. The rules aren't just protecting
a private corporations patent strategy anymore, they are
protecting the absolute integrity of public office.
We need to prevent a reality where government attorneys use
their sovereign power to harass a company purely to extort a
lucrative private partnership offer from that companies
defense firm later on. But simultaneously, we can't
make the rules so suffocating that no brilliant young lawyer
ever wants to work for the Department of Justice because it
will permanently ruin their private career.
It is a delicate balancing act to achieve that balance.
Rule 1.11 discards the broad, substantially related test
entirely. Oh, that's interesting.
Why? Well, if we use the
substantially related test, a former attorney for the
Environmental Protection Agency could never enter a private
environmental practice. Because every single
environmental lawsuit is in some ways substantially related to
the regulatory work of the EPA. Right government service would
become a career ending black hole.
So Rule 1.11 uses a much narrower, much more precise
standard. What's the standard?
A former government lawyer is only prohibited from
representing a private client in connection with a particular
matter in which the lawyer participated personally and
substantially while in government service.
Unless the government agency explicitly consents.
Exactly. Those two phrases are the keys
to the Kingdom particular matter and participated personally and
substantially. Let's define particular matter
first, because it limits the scope of the restriction
dramatically. A particular matter is strictly
defined as a specific legal action involving specific
identifiable parties. We are talking about a specific
corporate merger, a specific criminal prosecution and
individual tax audit or a targeted government
investigation. General broad based government
work does not count. Drafting legislation,
participating in agency rulemaking, or defining broad
enforcement policy does not constitute a particular matter.
To put that into a concrete hypothetical, if you work for
the IRS and you spend 2 years drafting the complex new
regulations for cryptocurrency taxation I.
Can resign from the government on Friday, open a private tax
boutique on Monday, and immediately begin advising
private tech billionaires on how to legally navigate and exploit
the exact loopholes in the regulations I just wrote.
Because drafting a regulation is broad policy, not a particular
matter involving specific parties.
As unseemly as that might look to the general public, ethically
you are completely in the clear. However, if your role at the IRS
was leading a targeted forensic tax audit of Elon Musk's
personal holdings. That audit is a particular
matter involving a specific party.
I cannot resign from the IRS and then represent Elon Musk in that
exact same ongoing audit. But the restriction only applies
if you participated personally and substantially in that
specific audit. And this raises A crucial issue
of chain of command liability. We have a highly illuminated
fact pattern from New York State Ethics Opinion 12:57 that tests
exactly how high up the ladder this restriction climbs.
The New York scenario is incredibly common in the
criminal justice system. You have an attorney who serves
as the elected District Attorney for a major county.
In that role, they are the chief law enforcement officer.
Their printed signature is rubber stamped onto the bottom
of every single criminal indictment generated by the
hundreds of line prosecutors in their office.
Eventually, this DA leaves office and transitions into
criminal defense work, perhaps joining the county public
defender's office. The critical question arises
because their name was literally on the paperwork for every
single prosecution initiated during their tenure.
Are they ethically conflicted out of defending every single
one of those pending cases? If we blindly apply the rules of
private imputation, the answer would be yes.
The head partner is responsible for the firm.
But applying the personally and substantially requirement of
Rule 1.11, the analysis is much more forgiving.
The ethics opinion provides a clear pragmatic framework, a
nominal supervisory role. Simply being the figurehead
whose name is printed on the letterhead does not equate to
personal and substantial participation.
The committee asks specific operational questions.
Did the former DA serve in more than a nominal supervisory role
on this specific defendant's case?
Did they personally review the evidentiary file?
Did they sit in on the strategy meetings?
Did they acquire actual knowledge of government
confidences regarding the specific defendant?
If the DA was managing an office of 500 prosecutors and never
actually looked at the file for a low level shoplifting
misdemeanor, they did not personally and substantially
participate in it. Therefore, they are entirely
free to defend that individual as a public defender.
The restriction requires actual tactile involvement in the case.
But let's look at the flip side. Let's return to our EPA attorney
who did personally and substantially investigate a
specific chemical company. That attorney is personally
disqualified from representing the chemical company in private
practice. When that disqualified
government attorney joins a massive 1000 lawyer defense
firm, does their infection impute to the entire private
firm? Does the private firm have to
drop the chemical company as a client?
This is where Rule 1.11 offers a tremendous structural advantage
to private firms hiring former government talent.
Under the specific government rules, the private firm can
avoid firm wide imputation and they don't have to worry about
the fuzzy appearance of impropriety standard overriding
them. The firm is simply mandated to
utilize the mechanical screening procedures we discussed earlier.
They must enact A timely, effective screen.
Ensure the former government lawyer receives no apportioned
fee from the matter. And crucially, they must provide
prompt written notice to the affected government agency.
So the mechanics of 1.10 A 2 are essentially grafted onto one
point Lev 1 to protect government secrets while
allowing the revolving door to keep spinning.
But we cannot end our analysis of government lawyers without
discussing the ultimate hazard. The criminal statutes.
Yes. When dealing with private
conflicts, the worst case scenario is losing your law
license. When dealing with the federal
government, the worst case scenario is losing your liberty.
We have to address the federal statutory overlay, specifically
18 USC Section 2O7. Section 2O7 elevates these
ethical guidelines into federal criminal law.
It imposes severe post employment restrictions on
former officers and employees of the executive branch.
And it operates on 2 distinct timelines.
First, it codifies the ethical rule into a lifetime criminal
ban. The lifetime ban.
Yes. A former federal employee is
permanently prohibited from making any communication to or
appearance before any federal agency or court on behalf of a
private party in connection with a particular matter in which
they participated personally and substantially.
If you violate that, you aren't just facing a state Guard
committee, you're facing a federal indictment.
A lifetime ban for personal involvement but the statute
actually goes further than the ethics rules when it comes to
supervisors it. Introduces a time limited ban
for matters you supervise but didn't actually touch right.
Yes, the two year official responsibility ban, even if a
high-ranking federal employee did not personally and
substantially participate in a matter, if that matter was
pending under their official responsibility during their
final year of government service.
They are criminally barred from representing a private party
regarding that matter for two full years after leaving
government. So if you were the head of an
antitrust division and a massive merger review is happening in
your department during your last year, you cannot lobby the
government on behalf of those corporations for 24 months, even
if you never read a single page of the file.
The revolving door has teeth. The reality is, if you are
leaving federal service for private practice, you need a
meticulous, exhaustive audit of every single file you touched
and every single file your subordinates touched before you
accept a private partnership. The risk is simply too high.
It demands absolute rigor, and that rigor is exactly what is
required to mask through this entire area of law.
We have covered an immense expanse of doctrinal ground
today. We really have.
We analyzed the fundamental shift from loyalty to
confidentiality. We deconstructed the objective
metrics of the substantially related test.
We mapped the boundaries of material adversity, even when a
former client is attacking you on Yelp.
We explored the mechanics of firm wide imputation, the high
stakes gamble of ethical screening, the enduring power of
the appearance of impropriety in cases like Clinard.
And the specialized criminal and ethical traps for government
lawyers navigating the revolving door.
The sheer volume of rules can feel overwhelming, which is why
we have to synthesize this into a functional exam attack plan.
Whether you are staring down a three hour law school final or
the multiple choice gauntlet of the NPRE, you cannot afford to
just free associate your answers.
You need a rigid, systematic approach.
Here's how you attack a conflict of interest fact pattern.
Step one, freeze the timeline and identify the exact status of
the client. Is this an ongoing active
relationship? If the retainer is active, you
are trapped in Rule 1.7 territory, applying the strict
unyielding standard of absolute loyalty.
But if the fact pattern indicates the relationship is
terminated. You immediately discard loyalty
and pivot to Rule 1.9, the realm of perpetual confidentiality.
If the lawyer is moving between the state or federal government
and the private sector, bypass the general rules and jump
straight to the specialized standards of Rule 1.11.
Perfect triage Step 2. If you have identified that you
are dealing with a former client under Rule 1.9, you must
ruthlessly apply the two prongs of the test. 1st Is the new
matter the same or substantially related to the old matter?
Remember abandoned human memory. Apply the objective test.
Would a lawyer in that previous role normally have acquired
confidential factual information that would materially advance
the new client's position? If yes, lock in the irrebutable
presumption. Second is their material
adversity. Are the parties on opposite
sides of AV? Is the lawyer attacking their
own prior work or are they preparing to cross examine their
former client? If both prongs are satisfied,
the individual attorney is permanently disqualified.
And finally, step three, trace the contagion.
Look at imputation and defenses. If the individual is
disqualified under 1.9, look immediately to Rule 1.10.
Does this infection spread to the entire firm?
The default answer on an exam is always yes.
Once you establish the firm is infected, aggressively hunt the
fact pattern for the exceptions. Is that conflict rooted purely
in a personal moral objection or a marriage?
If so, the firm is saved. If the conflict stems from a
lateral move, did the new firm implement A timely, effective
digital and physical screen? Did they ensure absolute zero
fee sharing? Did they send prompt written
notice, not a request for consent to the former client?
And the final critical check, look at the call of the
question. Are you in a modern jurisdiction
where the screen works, or are you in a strict jurisdiction
where the appearance of impropriety will destroy the
firm despite the screen? That three-step methodology is
bulletproof. It forces you to hit every
required element without getting lost in the narrative weeds.
But before we adjourn this session, we need to zoom out.
We've spent this entire time dissecting the intricate
architecture of imputation, the theory of shared confidences,
and the links firms must go to build ethical walls.
But the very foundation of these rules is currently colliding
with the reality of modern capitalism.
You were talking about the rise of the mega firm.
Yes. When these rules were drafted, a
large law firm had maybe 50 or 100 partners in a single city.
The rules were designed for an era where lawyers actually knew
everyone in their building. But today, the legal landscape
is dominated by global behemoths.
We are seeing law firms with 3-4 or 5000 attorneys operating out
of 40 different offices spread across multiple continents.
These massive entities share a single unified brand, a single
letterhead, a single IT infrastructure and, crucially, a
single global profit pool. As these firms continue their
relentless consolidation and growth, swallowing up smaller
boutiques and lateral partners every week, it becomes
statistically inevitable that they will encounter former
client conflicts constantly. It is mathematically impossible
for a 5000 lawyer firm to not be adverse to almost every major
corporation on earth at some point.
Which means the exception is going to become the rule.
These mega firms will have to rely on ethical screens not just
occasionally but as a fundamental daily operating
procedure just to survive and take on new business.
Which forces us to ask a profound philosophical question
about the future of our profession if a junior associate
in the London office of a mega firm is completely isolated and
screened from a case being handled by a senior partner in
the Tokyo office. Two lawyers who have never met,
who operate in different time zones, and who don't even speak
the same language. Does the historic fear of shared
confidences still make any logical sense?
Does the appearance of impropriety that terrified the
Tennessee Supreme Court in Clenard still resonate when the
firm is literally larger than most small towns?
Or will the sheer overwhelming economic reality of the 21st
century global legal market force the regulatory bodies to
completely rewrite Rule 1.10? Perhaps abandoning firm wide
imputation altogether in favor of a new paradigm.
It is the ultimate collision between ancient fiduciary duties
and modern global capitalism. The diagnostic landscape we
talked about at the beginning might be murky now, but the
sheer size and gravity of the modern law firm might force the
American Bar Association to invent an entirely new kind of
ethical MRI. Something to ponder as you
review your outlines. Thank you so much for joining us
on this deep dive into the architecture of confidentiality.
Keep that three-step exam attack plan drilled into your memory.
Never forget that while loyalty is fleeting, a client's secrets
are forever, and we will see you on the next deep dive.
All right, everyone welcome. Let's dive right into one of the
most frequently tested areas in professional responsibility,
conflicts of interest involving former clients.
This is one of those topics that shows up all the time, and
getting bring it right on an exam really comes down to being
precise. So today we are going to build
your analytical framework step by step.
OK, so here's our road map for today.
We're going to start with the single most important idea in
this area, the core distinction between duties to current and
former clients. From there, we'll dig into the
rule for the individual lawyer and then see how that lawyer's
problem can infect an entire firm.
After that, we'll talk about the cure screening, and finally,
we'll tackle the special rules for government lawyers and then
wrap it all up with a concrete attack plan for your exam.
First things first, to really get a handle on former client
conflicts, you have to nail this one point.
It's all about a fundamental shift that occurs the moment a
client becomes a former client. Your main duty changes
completely. If you get this wrong, your
entire analysis is going to go off the rails, so check this
out. For a current client, your
primary duty is loyalty. And loyalty is, well, it's huge.
It's this broad, all-encompassing duty to not do
anything that could harm their interests.
But the second that representation ends and they
become a former client, that duty of loyalty basically
evaporates. So what's left?
Confidentiality. That duty is forever.
The entire focus narrows from this big shield of loyalty down
to a very specific lock box protecting their secrets.
OK, so now that we've got that core distinction between loyalty
and confidentiality locked in, let's get into the black letter
law. We're talking about model Rule
1.9. This is the rule for you, the
individual lawyer, and it gives us the two-part test to figure
out if you actually have a conflict.
So here it is, the test from rule 1.9.
A. You have to ask 2 questions, and
for a conflict to exist, the answer has to be yes to both of
them. First, is this new case the same
or a substantially related matter to the one you handled
for your old client? And second, are the interests of
your new client materially adverse to your former client?
If it's yes and yes, Ding Ding, Ding, you spotted a conflict,
now this substantial relationship test, this is the
absolute heart of the matter. It's the linchpin of the whole
analysis, and you have to define it just right on an exam.
The key here isn't about what you actually learned.
Forget that. The question is, is there a real
risk that a lawyer in your shoes would have normally gotten
confidential info that could be used to hurt the old client in
the new case? It's an objective standard.
It doesn't remember if you have a terrible memory.
What matters is what a lawyer in that position could have
learned. Yeah, And this quote really just
nails it. The question is simply could
confidential info have been obtained?
And here's the big exam trap. So listen up.
If the answer is yes, many courts will then just say we
presume you got it. And it's an irrebutable
presumption that means you can't argue.
But, Professor, I don't remember a thing.
It doesn't matter. The risk is what creates the
conflict, not your actual memory.
All right, the second part of the test is usually a bit easier
to spot material adversity. I mean, this is the obvious
stuff, right? You're suing your former client.
You're negotiating against them in a big deal.
Or a slightly trickier one you'll see on exams is when you
try to tear down the very work you did for them before, like
trying to invalidate a contract you drafted.
That is absolutely material adversity.
OK, let's pause for a second on a really fine point in Rule 1.9.
But it's a good one. This rule isn't just about
taking on cases, it's about handling the information you
got. And there's a huge difference
between using it and revealing it.
You can't use their secrets to hurt them, unless that info is
now you know public knowledge or generally known.
But revealing it? Nope, no exceptions.
That duty is absolute. You can never, ever reveal it,
even if everyone on the street knows it.
All right, so let's say one lawyer in a firm has a conflict.
So what? Does that problem stay with
them? Or does it spread to everyone
else at the firm? Well, that's where the doctrine
of imputation comes in. This is all about how one
lawyer's problem can become the entire firm's problem.
So under roll 1.10, imputation is the default.
You should think of it like a contagion.
The conflict spreads from the one lawyer to the entire firm.
And the reason why is just common sense, right?
The law presumes that lawyers in a firm talk to each other.
They share files, they brainstorm over coffee.
So if one lawyer is infected with a conflict, the entire firm
is considered tainted and gets disqualified from the case.
But, and this is a big but, that firm wide disqualification isn't
always a life sentence. There is a cure, especially
today when lawyers jump between firms all the time.
The rules had to create an off ramp.
And that solution, that powerful cure is the ethical screen.
Now, you can't just say we're screening them and call it a
day. The rules are super strict about
this. To make a screen work and save
the firm from disqualification, you have to hit three
requirements. One, the screen has to be put in
place right away, and it has to be real.
We're talking a solid wall. No access to electronic or
physical files. No talking about the case 2 The
conflicted lawyer can't get paid from that case.
Not one dime of the fee. And three, you have to give the
former client prompt written notice about what you're doing.
And here's another huge exam point.
Not everyone agrees on this. There's a major split between
jurisdictions. The modern ABA rule, which most
states follow, says screening is OK for a lawyer who moves
between private firms. But, and you have to watch out
for this, some jurisdictions still follow an older, much
tougher rule that says, Nope, no screening allowed.
If one lawyer is out, the whole firm is out.
So you absolutely have to read the call of the question on your
exam to see which rule applies. So what are the rules trying to
do here? It's really a balancing act, a
tug of war between competing policies.
On one side you have this sacred perpetual duty to protect a
client's secrets that's non negotiable.
But on the other side you have the reality of the modern legal
world. Lawyers need to be able to
switch jobs without automatically disqualifying
their entire new firm. And clients deserve the freedom
to hire the lawyers they want. So screening is the compromise.
It's the attempt to protect those secrets while allowing for
a mobile legal profession the revolving door.
This is when a lawyer leaves government service and goes into
private practice. This scenario triggers a whole
different rule, Rule 1.11, and you need to know it because it's
different and in some ways even tougher.
So remember how we obsessed over that substantially related
standard? Well, for government lawyers,
you can just throw that out the window.
The standard here is much, much narrower.
We're looking for a particular matter.
This isn't about having general knowledge of, say, securities
law. It's about having worked on that
specific SEC investigation or that specific government
contract. It's all about a specific set of
facts and parties. And this slide really drives
home the difference. Substantially related is broad.
It's a prophylactic rule, a what if test.
What could you have learned? But particular matter,
especially when combined with the requirement of personal and
substantial participation, is narrow.
It's a what did you do test. We're drilling down into the
specific actions that lawyer actually took on that one
specific case while they were working for the government.
So just like in the private world, a government lawyer's
conflict gets imputed to their new firm.
But here's a twist For private firm hiring an ex government
lawyer screening isn't just a good idea, it is mandatory.
It is the only way to cure the conflict.
There's no other choice. And this makes perfect sense,
right? The public interest here is
huge. We have to avoid even the
appearance that a lawyer is cashing in on their government
service. All right, we've covered a lot
of ground. Now let's boil it all down into
a systematic approach you can take with you.
This is your checklist for the exam.
Follow these steps and you won't miss a beat.
OK, here it is, step one and you cannot skip this.
What is the client's status? Current or former?
That's your fork in the road. If they're a former client, move
to Step 2. Does the individual lawyer have
a conflict under Rule 1.9? Use that two-part test.
We discussed step three. If the lawyer does have a
conflict, does it get imputed to the firm?
The default answer is yes, which leads to Step 4.
Can the firm fix it? Is screening available and was
it done right? And finally, Step 5, always Kee
your eyes eeled. Is a government lawyer involved?
Because if so, you're in Rule 111 territory.
Look, here's how you get the big points on this kind of question.
Anyone can spot the basic issue. The A+ answer comes from
precision. You have to explicitly
distinguish loyalty from confidentiality.
Right at the start. You need to spit out the correct
definition of the substantial relationship test, and you must
mention that it's an objective standard.
When you talk about screening, hit all three requirements.
And critically, you need to show the greater you know the
difference between the substantially related standard
and the particular matter standard.
Nailing these details is what separates a good answer from a
great one, so we'll leave it there.
You can see how the modern rules, especially with the
allowance of screening, really lean into making it easier for
lawyers to move around. It's all about promoting lawyer
mobility. But it's worth asking, have we
struck the right balance? Or, in a rush to make things
practical for a modern legal market, have we chipped away at
that foundational promise of absolute client confidentiality?
Something for you to think about.