Attorney Roberts represented Client P for five years in various corporate transactions, including drafting and negotiating a key licensing agreement for Client P's proprietary technology. Two years after Attorney Roberts concluded all representation of Client P, Client P's competitor, Client Q, approaches Attorney Roberts seeking representation in a lawsuit against Client P. The lawsuit alleges that Client P breached the very same licensing agreement that Attorney Roberts helped to draft and negotiate. Can Attorney Roberts represent Client Q?
- AYes, because Attorney Roberts no longer represents Client P, and the duty of loyalty has ended.
- BNo, because representing a competitor is always a conflict, regardless of the subject matter.
- CYes, if Client P gives informed consent, confirmed in writing, after consultation.
- DNo, because the current matter is substantially related to the former matter, and Attorney Roberts obtained confidential information relevant to the current representation.
Show answer & explanationAnswer & explanation
Correct answer: D. No, because the current matter is substantially related to the former matter, and Attorney Roberts obtained confidential information relevant to the current representation.
Rule 1.9(a) prohibits a lawyer who has formerly represented a client from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client gives informed consent. Here, the matters are substantially related.
Why the other options are wrong
- A. This is incorrect. The duty of confidentiality and the duty regarding substantially related matters survive the termination of the client-lawyer relationship.
- B. This is too broad. Representing a competitor is not automatically a conflict unless the matters are the same or substantially related, or confidential information is at risk.
- C. While informed consent from the former client can waive this conflict, the question asks if Attorney Roberts 'can' represent Client Q, implying without such consent, which is not stated as given.
Duties to Former Clients: Substantially Related Matters
A lawyer cannot represent a new client against a former client in the same or a substantially related matter, where the new client's interests are materially adverse to the former client, unless the former client gives informed consent.
- Duty survives termination of representation.
- Focuses on 'substantially related matters'.
- Protects former client's confidential information.
Memory trick: Past clients, present problems, if it's too close, you lose.