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Attorney E-Newsletter

December 2005

RPC 1.9: Duties to Former Clients

RPC 1.9, which establishes duties to former clients, is extensively revised in the 2005 updates to the Rules of Professional Conduct.

Effective November 26, 2005, 254 licensed PA attorneys were transferred to inactive status for failure to pay the 2005-2006 Attorney’s Annual Fee.  These delinquent attorneys were also assessed an additional $200.00 Late Payment Penalty. 

Below are the totals by County:

County Inactive Status
Adams
1
Allegheny
23
Beaver
1
Bucks
3
Butler
1
Centre
2
Chester
9
Cumberland
2
Dauphin
3
Delaware
8
Fayette
1
Lackawanna
2
Lawrence
1
Lehigh
1
Luzerne
2
Lycoming
1
Monroe
2
Montgomery
22
Northampton
1
Philadelphia
51
Schuylkill
2
Susquehanna
1
Washington
1
York
1
Out of Country
7
Out of State
105

Subsection (a), which establishes the basic duty not to represent anyone adversely to a former client when the subject matter is the same or substantially related to that of the former representation, is unchanged except for a language change to reflect the revision's adoption of the term "informed consent" [see November newsletter].

It is important to note that RPC 1.9(a) is NOT dependent on the lawyer's possession of confidential information. If the lawyer represented the former client at all, that lawyer cannot represent one of adverse interest on a substantially related matter even if the lawyer did not or does not have confidential information.

Subsection (b) is new. It expands the coverage of the rule to former members of the disqualified lawyer's firm. If the lawyer is aware that a former firm represented a client, the lawyer may not represent a person:

  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.

Unlike RPC 1.9(a), which applies when the representation is personal, only lawyers who had access to protected information are affected when the prior representation was by others in the firm. Comment 6 notes that the degree to which lawyers share and have access to files within a firm may affect the extent that a lawyer will be inferred to have information relating to cases handled by the former firm.

These prohibitions should be seen as cumulative; that is, if a lawyer personally represented the former client, he or she is disqualified whether or not there is protected information. If someone else in the former firm represented the former client, only the lawyer who acquired information is disqualified. If the former representation is by a member of the lawyer's current firm, the lawyer is disqualified regardless of the possession of information under Rule 1.10(a) [See the chart on imputed disqualification in the October Newsletter].

The former RPC 1.9(b), which prohibits using information relating to the representation of a former client, is relabeled (c) and expanded to cover situations where the lawyer's former firm represented the client.

A troubling issue is that the revisions expand the responsibilities of lawyers who change firms for possible conflicts regarding the former firm's client list, to which the lawyer may not have access. The rule only prohibits "knowingly" representing a client in these situations, so a lawyer will not be disciplined for a former firm conflict of which the lawyer was unaware. However, lawyers may find themselves in difficult situations requiring withdrawal if a former client of the lawyer's previous firm challenges the lawyer's involvement.

There are extensive new Comments elaborating on these duties, which are beyond the scope of this short note to recount in detail. One notable comment is the definition of "substantially related" in Comment 3: "Matters are 'substantially related' for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter."

Tip Of The Month: Cell Phones

Cell phones are a great convenience and an essential tool in the modern busy lawyer's life. However, cell phone conversations in public can easily be overheard, and lawyers using cell phones should always be aware of the place and environment in which they are used. Especially if confidential or sensitive information is discussed in a cell phone conversation, the lawyer should seek a secure and private setting for the conversation. As a matter of courtesy, one should also be thoughtful of others in the immediate area, who may prefer not to be involuntary witnesses to one's telephone conversations.