Attorney B represented Company P in several intellectual property matters over a five-year period, including patent applications and licensing agreements. Three years after Attorney B ceased representing Company P, a new client, Company Q, approaches Attorney B. Company Q wants Attorney B to represent them in a lawsuit against Company P for patent infringement. The patent in question was one that Attorney B helped Company P secure. What is Attorney B's ethical obligation?
- AAttorney B must decline representation of Company Q because the matters are substantially related.
- BAttorney B can represent Company Q as long as Company P is no longer a current client.
- CAttorney B may represent Company Q if the information gained from Company P is no longer confidential.
- DAttorney B may represent Company Q if Company P gives informed consent, confirmed in writing.
Show answer & explanationAnswer & explanation
Correct answer: A. Attorney B must decline representation of Company Q because the matters are substantially related.
Rule 1.9 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 former client, unless the former client gives informed consent, confirmed in writing. Here, the patent infringement suit is substantially related to the previous patent work done for Company P, making the representation impermissible without Company P's consent.
Why the other options are wrong
- B. This is incorrect. The duty to former clients persists beyond the termination of the attorney-client relationship, especially for substantially related matters.
- C. The confidentiality of information is a factor, but the 'substantially related' test is broader and focuses on the relationship between the matters, not just the current confidentiality of specific information.
- D. While consent is a possibility, the prompt asks for the primary ethical obligation, which is to decline unless consent is obtained. The better answer acknowledges the initial prohibition.
Duties to Former Clients (Substantially Related Matters)
A lawyer generally 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, unless the former client gives informed consent, confirmed in writing.
- Applies to 'same or substantially related' matters.
- Requires material adversity to the former client.
- Prohibition can be waived by former client's informed consent, confirmed in writing.
- Duty continues after representation ends.
Memory trick: Past Projects Prohibit Present Pursuits, Unless Permission Prevails.