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ER 1.9 Duties to Former Clients

The Standard

After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest that will limit the lawyer’s representation of other clients.

The Limitation

ER 1.9 does not necessarily preclude any and all future representation that may be adverse to a former client.

FAQs

I think my representation of a client has ended but I am not sure. What should I do?

Send a disengagement letter. In most practice areas, it is best to do this promptly at the conclusion of any representation. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly assume the lawyer is continuing to look after the client’s affairs.

I represented Amy in a divorce against Bob. Now Bob wants to hire my firm for real estate transactional services not involving Amy. Is this a conflict under ER 1.9?

No. Bob’s new matter does not involve Amy and none of her confidential information arising from the prior representation would be relevant to Bob’s new legal matter.

What if I formerly represented Amy in business matters, and now Bob wants to retain me in his divorce from Amy?

Assuming you learned financial information about Amy in the former representation that will be relevant in the divorce, you may not represent Bob absent Amy’s written informed consent.

I am transitioning to another firm. Must my current firm allow me to take a list of my clients for conflicts purposes?

Yes. In order to check future conflicts, a departing lawyer must take a list of clients and matters on which the departing lawyer worked. See Ariz. Ethics Op. 10-02.

After I switch firms, may I represent a client adverse to a client of my former firm? Is that client considered my former client since I’ve left the firm?

Yes, you should consider clients of your former firm your former clients, for purposes of confidentiality and evaluating conflicts. However, the inquiry does not end there. Neither you nor your new firm are disqualified by ER 1.9 unless you were involved in the representation or otherwise acquired confidential information about the client represented by your former firm. Keep in mind that in a disqualification proceeding, it will be your burden to prove you were not involved in the client matter at your former firm and did not acquire client information.

May I use information I learned from my former representation of Corporation X to influence my advice to a current industry client, as long as I don’t reveal the former client’s confidential information to my new client?

Not if doing so disadvantages the former client, unless the information has become generally known. Information is not generally known simply because it is publicly available. This exception contemplates information widely recognized by members of the public in the geographic area or widely recognized in the former client’s industry, profession, or trade. See ABA Formal Op. 479.

I received a lawful subpoena for records of a former client. I contacted the former client, who did not consent to disclosure and so I filed an objection to the subpoena. The court denied my objection. Do I disclose the former client information?

Before you disclose the information, first you should contact the former client again, to discuss appeal of the court’s denial. See Comment 15 to ER 1.6, Ariz. Ethics Op. 00-11, and ABA Formal Op. 473.

Client is difficult and fired me. It’s just as well. Successor counsel seems nice enough and has questions. In bringing her up to speed, can I warn her about this former client’s shortcomings, as a professional courtesy, lawyer to lawyer?

No. You must protect a client’s interests in transitioning representation and should not taint successor counsel. Resolve any doubts about what to disclose to new counsel by confirming with the client. See AEAC EO-20-0001.

A former client posted online an unfair review about my services. May I respond on the forum and correct the misleading information?

No. Negative online reviews do not trigger the self-defense exception to the duty of client confidentiality. See ABA Formal Op. 496. Although you may choose to reply generically, inviting the author to “contact us to discuss further,” it is generally better to avoid engaging and risking increased exposure of the negative post. Consider contacting the client to discuss. Exit interviews at disengagement are also a useful tool to resolve any outstanding issues.

I represented several joint clients who parted ways during the representation and became legally (or even positionally) adverse. Two of the clients have now obtained successor counsel. May I continue to represent the remaining three clients?

When representation of a joint client ends, that client becomes a former client, triggering ER 1.9 in terms of ongoing representation of the remaining clients. You can’t represent the remaining clients against the former clients unless all affected clients provide written informed consent. Most often, when a joint or common representation fails, the lawyer has to withdraw from representing all of the clients. See Comment 1 to ER 1.9 and Ariz. Ethics Op. 92-07.

If the details of my former client’s case are now public record, am I free to discuss them?

Not without client consent. The duty of confidentiality survives the representation and there is no public records exception. See ABA Formal Op. 479.

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