Ethics Committee Advisory Opinion #1996-97/3
March 25, 1997
Before representing a client against a former employer/client, the attorney must ensure that the current representation involves neither (1) a substantially related matter, nor (2) any confidential information received during the representation of the former client, whether or not such information was received in confidence. Rule 1.9; Rule 1.6.
The attorney is prohibited from representing a client against a former client under Rule 1.9 if (1) there was a valid attorney-client relationship with the former client; (2) the interests of the present & former client are materially adverse; (3) the former client has not consented to the new representation; and (4) the current & former matter is the same or substantially related. In such a situation, there is an irrefutable presumption that the attorney possesses confidential information gained from the former client, and no actual prejudice need be proved. Rule 1.9(a).
Even if the representation of the new client is not substantially related, before engaging in a matter involving a former client, the attorney must very carefully
analyze and insure that no confidential information obtained during the former representation is any way being or may be used. Such confidential information is broadly defined under Rule 1.6 to include all information relating to the representation, and not only matters communicated in confidence by the client; this could include methodology of negotiations, internal policies and procedures, and preferences and positions taken in certain contractual or governmental actions. (Rule 1.6).
Does an impermissible conflict arise when an attorney represents a client whose interest is adverse to a former client if the information the attorney seeks to use in the representation is now general or public knowledge?