New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

The most experienced neutrals as selected by local litigation firms across the United States.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Rule 1.9: Duties to Former Clients

ABA RULE 1.9


Adopted, Effective Jan. 1, 2008

CLIENT-LAWYER RELATIONSHIP
Rule 1.9: Duties To Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

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

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

    (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

    (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

    (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

 
NEW HAMPSHIRE COMMENT
 
    The New Hampshire Supreme Court has relied upon this rule for the criteria governing the consideration of a motion to disqualify a party's former lawyer for a conflict of interest.  Sullivan County Reg. Refuse Disp. Dist. v. Town of Acworth, 141 N.H. 479, 481-82 (1996).

    Law firms and legal service organizations which handle a high volume of cases confront the limitations of this rule on a more frequent basis than do other practitioners.  Firms and organizations may accept cases where a former client is a witness in the new (current client's) case if the representation of the former client is not “substantially related” to the current client’s case.  Rule 1.9(a) permits such representation, but attorneys are cautioned to fully explore the definition of "substantially related" under relevant case law in the controlling jurisdiction.  If such representation is permissible, attorneys in the law firm or organization must nevertheless take appropriate steps in a case that is not substantially related to comply with Rule 1.9(c) by protecting the confidential information obtained during the representation of the former client.

    The New Hampshire Public Defender has adopted a Rule 1.9(c) compliance policy in cases that are not substantially related in which a “neutral attorney” orders the former client’s files sealed and prohibits any communication between the attorney who represented the former client and the attorney who represents the new client.  In two cases where the State sought disqualification of the Public Defender because one of its attorneys had previously represented an individual who was a state's witness in the new case, the New Hampshire Superior Court denied disqualification and referenced with apparent approval the Public Defender's Rule 1.9(c) compliance policy.  See State of New Hampshire v. Gordon Perry, Nos. 97-S-777 - 780 (MerrimackCounty Superior Court (Nadeau, J.) April 10, 1998);  State of New Hampshire v. Eric Smalley, No. 01-S-1280 (MerrimackCounty Superior Court (McGuire, J.) January 29, 2002). 


ABA RULE 1.9

 

Click for directions to Bar events.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer