Successive Conflicts (MR 1.9)
Definition
Model Rule 1.9 imposes duties to former clients. A lawyer who has previously represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client’s interests, unless the former client gives informed, written consent.
Elements
MR 1.9(a) — Successive representation prohibited when:
- Lawyer previously represented a client in a matter;
- New representation involves the same or substantially related matter;
- New client’s interests are materially adverse to former client’s interests; AND
- Former client has not given informed, written consent.
Substantial relationship test: A matter is substantially related if it involves the same transaction or legal dispute, or if there is a substantial risk that confidential factual information obtained in the prior representation would normally have been obtained in the prior representation and would be relevant in the new matter.
MR 1.9(b) — applies when lawyer has confidential information from a prior firm about a former client, even if lawyer did not personally represent that client.
Key Concepts
- Confidential information: Core concern is that the lawyer possesses confidential information from the prior representation that could be used to the former client’s disadvantage.
- Materially adverse: Not every representation against a former client is barred — only those where interests materially conflict in a related matter.
- Imputation: Under MR 1.10, if one lawyer in a firm has a successive conflict, the conflict is generally imputed to the entire firm (subject to screening exceptions).
Key Cases
- The substantial relationship test originated in T.C. Theatre Corp. v. Warner Bros. Pictures (2d Cir. 1953) and has been widely adopted.
Policy / Rationale
- Former clients must be able to share information with lawyers without fear that the lawyer will later use that information against them.
- Lawyers owe ongoing loyalty and confidentiality duties that survive the termination of representation.
- Preserves client trust in the legal system.
Related Doctrines
- Conflict of Interest (MR 1.7)
- Imputed Disqualification (MR 1.10)
- Duty of Confidentiality (MR 1.6)
- Attorney-Client Privilege