TOPIC J: DUTIES TO FORMER CLIENTS 2016 P.R. Prof. Janicke.

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TOPIC J: DUTIES TO FORMER CLIENTS 2016 P.R. Prof. Janicke

THE MAIN RULE R. 1.9 LAWYER OR FIRM CANNOT TAKE ON A NEW CLIENT: –AGAINST A FORMER CLIENT, IF: (i) THE NEW MATTER IS “SUBSTANTIALLY RELATED” TO THE PAST WORK, and (ii) PAST CLIENT INFO FLOWED INTO FIRM –PRESUMED TO BE THE CASE 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 2

THE MOBILE LAWYER RULES R. 1.9(b), R. 1.10(a)(2) (PERMISSIVE RULES NOT ADOPTED IN TEXAS) WHEN A LAWYER MOVES TO ANOTHER FIRM, WHO ARE HIS “FORMER CLIENTS”? AND DOES HE INFECT EVERYONE ELSE AT THE NEW FIRM (WHO OTHERWISE COULD TAKE ON AN ADVERSE CLIENT)? 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 3

ABA RULE 1.9 PROVIDES SOME RELIEF A “MOVED” LAWYER CAN NOW TAKE ON RELATED MATTERS, PROVIDED SHE DID NOT RECEIVE ANY CONFIDENTIAL CLIENT INFO WHILE AT THE “OLD” FIRM R. 1.9(b) OR HAS INFORMED CONSENT [PRACTICALLY IMPOSSIBLE] 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 4

R PROVIDES SOME RELIEF FOR THE “NEW” COLLEAGUES: –IF THE LAWYER HAD KNOWLEDGE OF THE (NOW) FORMER CLIENT’S WORK, SHE REMAINS DISQUALIFIED IN ADVERSE RELATED MATTERS –BUT SHE CAN AVOID INFECTING OTHERS AT THE NEW FIRM, BY TIMELY NOTICE AND SCREENING PROCEDURES R. 1.10(a)(2) 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 5

R NOT NEEDED IF: IF THE LAWYER DID NOT HAVE KNOWLEDGE OF THE FORMER CLIENT’S WORK, NEITHER SHE NOR HER NEW FIRM IS DISQUALIFIED SCREENING IS NOT NEEDED 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 6

WHERE NO ONE CHANGES FIRMS WITHIN A SINGLE GIVEN FIRM THAT HAS DONE WORK FOR A FORMER CLIENT: –THE FIRM IS DISQUALIFIED IN RELATED MATTERS –SCREENING IS OFTEN OFFERED WHEN RELATEDNESS IS DOUBTFUL, BUT DOES NOT FIT R. 1.9(b) OR 1.10, AND USUALLY DOES NOT WORK 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 7

USE OF FORMER CLIENT INFO IF THERE IS NO ADVERSE RELATED MATTER NOW AT HAND (SO NO ONE IS DISQUALIFIED) STILL NEED TO PROTECT FORMER CLIENT’S INFO AGAINST DISADVANTAGE R. 1.9(c) –UNTIL INFO IS GENERALLY KNOWN –THEN CAN BE USED, EVEN TO CLIENT’S DISADVANTAGE 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 8

THE NO-USE RULE WOULD APPLY TO LAWYERS USING FORMER-CLIENT INFO FOR THE LAWYERS’ OWN BENEFIT (e.g. INVESTMENTS) OR TO HELP OTHER CLIENTS WITHOUT REVEALING THE INFO 2016TOPIC J -- CONFLICTS RE. FORMER CLIENTS 9