III. RPC 1.9: Duties to Former Clients
RPC 1.9 picks up the concepts and principles from RPC 1.7 and 1.8, addressing conflicts of interest involving current clients, and adjusts them to apply to conflicts involving former clients. The dual duties of protection of confidences and loyalty to the client continue to apply even after the attorney-client relationship has terminated. A primary concern driving RPC 1.9 is an interest in "the protection and enhancement of the professional relationship in all its dimensions."718 Concern for the appearance of impropriety, and the potential detriment to future attorney-client relationships that such a perception could cause, calls for clear prohibitions on actions that could be perceived as harmful to a former client. For additional discussion of the duties of confidentiality and loyalty to clients, see Section I., above, and Chapter 6 on confidentiality.
The concepts embodied in RPC 1.9 have been recognized since well before the adoption of the Rules of Professional Conduct.719 A driving concern behind the prohibitions in RPC 1.9 is that the acceptance by a lawyer of a subsequent representation adverse to a former client could be seen as switching sides. "Parties are allowed to switch sides; lawyers are not."720 Examples of prohibited successive representations include rescinding a contract drafted for a former client to benefit a new client, representing a client in a civil action when the attorney had formerly prosecuted the client concerning the same transaction, or representing one client against a former client when both had previously been coclients in the same or substantially related matter.721
Both the lawyer and the client should expect that the lawyer will use every skill, expend every energy, and tap every legitimate resource in the exercise of independent professional judgment on behalf of the client and in undertaking representation on the client's behalf. That professional commitment is not furthered, but endangered, if the possibility exists that the lawyer will change sides later in a substantially related matter. Both the fact and the appearance of total professional commitment are endangered by adverse representation in related cases.722
A. Brief Overview of the Rule
Washington has adopted MRPC 1.9 in its entirety. In addition, Washington has made revisions to two comments accompanying the rule, Comments 5 and 9. Washington has added language to the last sentence of Comment 5 to indicate that both RPC 1.10(b), regarding termination of association with a firm, and RPC 1.10(e), addressing imputation when a lawyer terminates or initiates association with a firm, are to be considered in connection with RPC 1.9. The model rule only mentions Rule 1.10(b)—the model rules do not include a subsection (e) to Rule 1.10.723 Washington's Comment 9 to RPC 1.9 deletes the second sentence of the MRPC comment referencing effectiveness of advance waivers and Comment 22 of MRPC 1.7, as Washington has not adopted that comment. Aside from these minor differences, Washington adheres to the model rule regarding conflicts of interest involving former clients. Duties owed to former clients, it should be noted, may also create a current client conflict under RPC 1.7(a)(2). So both rules often need to be examined when dealing with a former client conflict.
The first section of RPC 1.9 addresses an attorney's duty of loyalty to former clients by prohibiting acceptance of a new representation if the interests of the new client are materially adverse to those of a former client and the matters are the same or "substantially related." The second section instructs the lawyer to avoid representation of a client if the lawyer's former firm has previously represented a client with interests materially adverse to the new client in either the same or a substantially related matter and the lawyer has acquired certain protected information regarding a client of the former firm and that information is material to the matter involving the new client. Both of these prohibitions can be overcome by obtaining the client's informed consent, confirmed in writing.724
The third section of RPC 1.9 prohibits the misuse or revelation of information relating to the representation of a former client of the lawyer or the lawyer's present or former firm. The first subsection of RPC 1.9(c) is similar to RPC 1.8(b) involving current clients, prohibiting the use of information relating to the representation to the disadvantage of the former client unless such use is otherwise allowed by the rules. RPC 1.9(c)(1) differs from RPC 1.8(b), however, because it adds an additional exception allowing use of information relating to representation to the disadvantage of a former client when it has become "generally known." The second subsection to RPC 1.9(c) addresses the duty of confidentiality a lawyer owes to former clients by restricting the disclosure of information relating to representation, even if the information is not actually used to the client's disadvantage, and apparently even if the information has become generally known.725
Jurisdictions vary as to who may seek disqualification from representation under RPC 1.9. In the majority of jurisdictions, "only a current or former client of an attorney has standing to complain about the attorney's representation of interests adverse to that client or former client."726 Washington appears to follow the majority view.727 However, the U.S. District Court for the Western District of Washington has chosen the minority view, finding "nonclient litigants may, under proper circumstances, bring motions to disqualify counsel based on conflicts of interest."728
When an attorney violates RPC 1.9(a), automatic disqualification is required.729 However, absent a substantial relationship between the former and current representations or an allegation by the client that the lawyer "had access to relevant confidential information," disqualification is not required.730
B. RPC 1.9(a): Former Clients of a Lawyer
RPC 1.9(a) is similar in principle to the prohibition imposed by RPC 1.7 against representing clients with materially adverse interests. When the principle is applied to former clients, however, it is somewhat less restrictive, in that representation is proscribed only when the matters are found to be the same or "substantially related." Materially adverse representations involving current clients, under RPC 1.7, do not require the additional element of a substantial relationship to create a conflict of interest.
1. Formerly Represented a Client in a Matter
For a lawyer to be found to have "formerly represented" a client in a matter, an attorney-client relationship must have existed between the two. For a detailed analysis of determining when an attorney-client relationship exists, see Section I.B., above, and Chapter 4 of this book. Absent the existence of an attorney-client relationship, there can be no violation of RPC 1.9.731
Also requisite for application of RPC 1.9 is that an attorney-client relationship has terminated. While a client remains a current client, RPC 1.7 applies, and RPC 1.9 only comes into play upon termination of representation. The attorney-client relationship can end in a variety of ways, including discharge of the lawyer by the client, withdrawal of the attorney, termination upon conclusion of the contractual obligation or fulfillment of the services for which the attorney was hired, and death of the client.732
Length and type of representation examples as applied to RPC 1.9.The interaction between a lawyer and a client does not have to be substantial to constitute an attorney-client relationship.733 In Teja v. Saran,734 the court determined that an attorney-client relationship formed when, during representation for a domestic violence charge, Teja had a conversation with his attorney (Pandher) in which Pandher provided legal advice on an unrelated business dispute claim against one of Teja's business partners, Saran. After Pandher had withdrawn from representation of Teja, Teja filed a claim against Saran, and Pandher represented Saran in the resulting suit. Teja sought to disqualify Pandher from representing Saran, claiming conflict of interest, and Pandher challenged the disqualification, claiming no attorney-client relationship had existed with Teja on this particular matter. The lower court denied the disqualification. The Court of Appeals, however, found that an attorney-client relationship did indeed exist between Teja and Pandher regarding the business claim, even though the consultation was brief and incorporated within a meeting regarding the other matter on which Pandher represented Teja.735
In Washington, if a lawyer has filed a notice of appearance for two clients and subsequently learns of a conflict of interest and withdraws from representation of one of the clients, that client becomes a former client requiring adherence to RPC 1.9 if the attorney wishes to continue representing the other initial client.736 Also, if a lawyer purchases a legal practice and acquires new clients in doing so, the same multiple-client conflict rules apply as when a lawyer obtains a new client from another source.737
Lawyer-to-lawyer consultation regarding clients is not uncommon. Although a consulted lawyer is obliged to protect confidential client information that the lawyer may learn from such consultation, "the consulting lawyer's client does not thereafter have the status of a former client to the consulted lawyer such that Rule 1.9 would be applicable."738
When a lawyer represents one client in a joint defense consortium, the lawyer does not automatically acquire an attorney-client relationship with the other client-members involved in the consortium.739 However, the lawyer may well acquire a fiduciary obligation to those other members from or about whom he received...
