April 02, 2020

Model Rule 1.9

Reporter's Explanation of Changes

Ethics 2000 Commission Draft for Public Comment

March 23, 1999

TEXT:

1. Substitution of "informed consent" for "consents after consultation"

For the reasons explained in connection with Rule 1.4, in Rule 1.9(a) and (b), the phrase "consents after consultation" has been changed to "gives informed consent to the representation." That change is being proposed throughout the Model Rules, and "informed consent" is defined in Rule 1.4(c). No substantive change is intended.

2. Deletion of Rule 1.9(c)(2)

Rule 1.9(c)(2) that prohibited "revealing" confidential information has been deleted here but restored and given full effect in Rule 1.6(a). The prohibition is a confidentiality rule more appropriate in Rule 1.6 than in a conflict of interest rule like 1.9. The prohibition on a lawyer's "use" of confidential information adverse to the client's interest has been retained here, however, as Rule 1.9(c). No substantive change is intended by these moves.

COMMENT:

[1] This Comment has been amended first to make clear that Rule 1.11, not Rule 1.9, will regulate the conduct of present and former government lawyers. The Commission is still working on Rule 1.11, but, in general, an effort is being made to treat government lawyers in the same manner as their private counterparts except as the special needs of the government require a different rule. No substantive change is intended as to how Rule 1.9 applies to lawyers who do not or did not work for the government.

Comment [1] has also been amended to make clear that this Rule applies when joint clients have had a falling out and one or more of them has dismissed the lawyer. That question arises frequently, and the amendment is to help make Comment [1] helpful to lawyers. No substantive change from present law is intended.

[2] This Comment is unchanged.

[3] This entirely new Comment defines when a representation is "materially adverse" to the former client. The term might be self-explanatory and a definition unnecessary, but the Commission has received suggestions that a definition would be helpful. No substantive change is intended.

[4] This entirely new Comment defines when matters are "substantially related." That term has been the subject of considerable case law, 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 substantive change from the dominant rule under current case law is intended.

[5] Present Comment [3] has been renumbered but otherwise is unchanged.

[6] Present Comment [8] has been renumbered but otherwise is unchanged.

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

[8] Present Comment [9] has been renumbered. A sentence has been added to clarify that Rule 1.11, not Rule 1.9, governs the conduct of government and former government lawyers. No change in substantive law is intended.

[9] Present Comment [11] has been renumbered. Minor changes have been proposed for clarification, but no substantive change is intended.

[10] This Comment combines present Comments [12] and [13] in an effort to increase the clarity of each. No substantive change is intended.

Finally, present Comments [4], [5], and [10] have been deleted as no longer helpful to analysis of questions arising under this Rule. They are not incorrect, but they seem to add length to the Comment without adding corresponding insight. No substantive change is intended by the deletions.