Model Rule 1.9

Reporter's Explanation of Changes

TEXT:

1. New caption

Because paragraph (c) addresses confidentiality, the current caption is underinclusive.

2. Paragraphs (a) and (b): Substitute "informed consent, confirmed in writing" for "consents after consultation"

In paragraphs (a) and (b), the phrase "consents after consultation" has been changed to "gives informed consent to the representation, confirmed in writing." This change is consistent with a similar change in Rule 1.7 and reflects a judgment of the Commission that both lawyers and their former clients benefit when the lawyer is required to secure the former client's informed consent, confirmed in writing, to a representation that is materially adverse to the former client in the same or a substantially related matter. See Rule 1.0(e) for the definition of "informed consent" and Rule 1.0(b) for the definition of "confirmed in writing."

3. Paragraph (c): Replace "Rule 1.6 or Rule 3.3" with "these Rules"

This change was made because there are Rules other than Rule 3.3 that may require disclosure (at least when disclosure is permitted by Rule 1.6) - see Rules 1.2(d), 4.1(b), 8.1 and 8.3.

COMMENT:

[1] Comment [1] has been amended to make clear that this Rule applies when common clients have had a falling out and one or more of them has dismissed the lawyer. The Comment has also been amended to make the important point that Rule 1.11 now determines when Rule 1.9 is applicable to present and former government lawyers. No change in substance is intended as to how Rule 1.9 applies to lawyers who do not or have not worked for the government.

[2] These changes are designed to further refine and cabin the concept of substantial relationship, particularly as it affects the potential disqualification of former lawyers for an organization, including the government.

[3] This new Comment explains when matters are "substantially related." That term has been the subject of considerable caselaw, and this definition and suggestions about applying it are an effort to be helpful to lawyers in complying with the Rule and courts in construing it. No change in substance is intended.

[4] and [5] These Comments have been deleted as no longer helpful to the analysis of questions arising under this Rule. No change in substance is intended.

[5] This Comment has been modified to correct the erroneous reference to paragraph (b) in the first sentence.

[6] This Comment combines current Comments [6] and [7] in an effort to increase the clarity of each. No change in substance is intended.

[7] Because this sentence addresses confidentiality rather than disqualification, the reference to Rule 1.9 has been narrowed to a reference to Rule 1.9(c). No change in substance is intended.

[10] This Comment has been deleted as no longer helpful to the analysis of questions arising under this Rule. No change in substance is intended.

[8] A minor wording change was made for clarification. No change in substance is intended.

[9] This Comment combines current Comments [12] and [13] and adds a cross-reference to the Comment in Rule 1.7 that addresses advance waivers of conflicts of interest.

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