A lawyer learns that a former client, whom the lawyer previously represented in a real estate transaction, is now a witness for the opposing party in an unrelated civil case where the lawyer is representing a new client. The former client's testimony is crucial, and the lawyer possesses confidential information from the prior representation that could be used to impeach the former client's credibility.
- AThe lawyer must disclose the potential conflict to the new client and obtain their informed consent before proceeding.
- BThe lawyer may use the confidential information to impeach the former client, as the former client is now an adverse witness.
- CThe lawyer is prohibited from using the confidential information to the disadvantage of the former client, unless an exception applies.
- DThe lawyer may use the confidential information if it has become generally known.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer is prohibited from using the confidential information to the disadvantage of the former client, unless an exception applies.
Rule 1.9 (Duties to Former Clients), which is often implicated in scenarios involving fairness to opposing parties and witnesses, prohibits a lawyer from using information relating to the representation to the disadvantage of the former client, unless the former client gives informed consent or the information has become generally known. The fact that the former client is now an adverse witness does not negate this duty of confidentiality.
Why the other options are wrong
- A. While disclosing to the new client might be good practice, the primary ethical obligation here is to the former client's confidentiality, which prohibits the *use* of the information, not just its disclosure to the current client.
- B. The duty of confidentiality to a former client persists even if they become an adverse witness in a separate matter.
- D. This states an exception, but the scenario does not indicate the information is generally known; it implies it is still confidential.
Confidentiality to Former Clients
A lawyer shall not use information relating to the representation of a former client to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known.
- Duty of confidentiality extends beyond the termination of representation.
- Prohibits using information to the former client's disadvantage.
- Exceptions: informed consent, generally known information, or as permitted by rules (e.g., to prevent crime).
Memory trick: Past clients' secrets, like old treasures, stay locked away, not for new battles to play.