1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
Paragraph (a):DR 5-104(A) provides that a lawyer "shall not enter into a business
transaction with a client if they have differing interests therein and if the client expects the lawyer to
exercise his professional judgment therein for the protection of the client, unless the client has
consented after full disclosure." EC 5-3 states that a lawyer "should not seek to persuade his client
to permit him to invest in an undertaking of his client nor make improper use of his professional
relationship to influence his client to invest in an enterprise in which the lawyer is interested."
Paragraph (b):DR 4-101(B)(2) similarly provides that a lawyer “shall not knowingly use a
confidence or secret of a client to the disadvantage of the client.”
The Committee rejected a proposal that would prohibit the lawyer from using information
relating to the representation to the advantage of the lawyer or a third person. DR 4-101(B)(3), on
the other hand, currently provides that a lawyer should not use "a confidence or secret of a client for
the advantage of the lawyer, or of a third person, unless the client consents after full disclosure."
Paragraph (c): There is no counterpart to paragraph (c) in the Disciplinary Rules. EC 5-5,
however, states that a lawyer "should not suggest to his client that a gift be made to himself or for
his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he
unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer,
the lawyer may accept the gift, but before doing so, he should urge that the client secure
disinterested advice from an independent, competent person who is cognizant of all the
circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in
which his client desires to name him beneficially be prepared by another lawyer selected by the
client."
Paragraph (d): Paragraph (d) is substantially similar to DR 5-104(B), but refers to "literary
or media" rights, a more generally inclusive term than "publication" rights.
Paragraph (e):Paragraph (e)(1) is similar to DR 5-103(B), but eliminates the requirement
that "the client remains ultimately liable for such expenses."Paragraph (e)(2) has no counterpart in
the Disciplinary Rules.
Paragraph (g):Paragraph (g) differs from DR 5-106 in that it requires that the lawyer
afford the client an opportunity to consult independent counsel and that the client consent in
writing.
Paragraph (h): Paragraph (h)(1) is similar to DR 6-102(A). There is no counterpart in the
Disciplinary Rules to Paragraph (h)(2).
Paragraph (i):There is no counterpart to Paragraph (i) in the Disciplinary Rules. In
Tennessee Formal Ethics Opinion 82-F-31, the Ethics Committee addressed the issue of spousal
disqualification within the rubric of DR 5-105 and held that there was no per se disqualification of
married lawyers who were not practicing together from representing clients with opposing interests.
Special circumstances, however, might warrant disqualification, and such a disqualification would be
imputed to other lawyers in the disqualified lawyer’s firm.
Paragraph (j) is substantially the same as DR 5-103(A).
Paragraph (g): Paragraph (g) differs from ABA Model Rule 1.8(g) to the extent that it
requires that the lawyer afford the client an opportunity to consult independent counsel. The
Committee believes there is such potential for conflict in aggregate settlements that this special
procedural safeguard is needed. Also the client’s consent must be given in writing.
Paragraph (h): Paragraph (h)(1) differs from ABA Model Rule 1.8(h) in that the latter
permits exculpation from liability if “permitted by law and the client is independently represented
in making the agreement.”Paragraph (h)(2) differs from the Model Rule in that the latter only
prohibits settlement of a malpractice claim with an unrepresented current or former client “without
first advising that person in writing that independent representation is appropriate in connection
therewith.”
The Committee added a reference to “direction” in Paragraph (f), precluding a lawyer from
accepting either compensation or direction unless the lawyer complies with the requirements of the
Rule.
The Committee deleted language in Paragraph (i) so that it would conform to ABA Model
Rules 1.8(i).
Made
1. The Committee recommends modification of Rule 1.8(i) to require that the client give
written consent as defined in Rule 1.0(b). This Committee believes that this type of conflict of
interest should be treated the same as Rule 1.7 conflicts of interest.
2. The Attorney General has voiced a concern that Paragraph (b) would permit a
government agency to consent to the adverse use of confidential information, and that allowing the
government to do so is inconsistent with the holding in Formal Ethics Opinion 81-F- 4 that
governmental clients cannot effectively consent to a representation involving a conflict of interest.
The Committee does not believe that such a restriction on the rights of governmental clients should
be imposed by the Rules of Professional Conduct. Indeed, in this regard, the Committee would call
the Court’s attention to Rule 1.7, Comment [6], which states: “In the absence of other law to the
contrary, a government official or entity, like any other client, may waive a conflict interest under
this Rule.”The Court should similarly note that Rule 1.11 (Successive Government and Private
Employment) specifically permitsthe appropriate government agency to consent to a conflict of
interest involving a former government lawyer. By expressly recognizing the right of government
clients to give consent on the same terms as other clients, the Committee intended tooverrule any
Formal Ethics Opinions that have held to the contrary. As a matter of professional ethics, the
Committee sees no justification for treating governmental clients differently than other clients. The
Committee, of course, recognizes the power of the government to regulate the conduct of its
employees and to prohibit its agencies or officials from giving consent in situations in which other
clients are allowed to do so. The point is simply that such restrictions should be imposed by the
governmental client or by other law enacted by the General Assembly, rather than by the Rules of
Professional Conduct. Thus, the Committee recommends no change to Paragraph (b) that would
prohibited by the rule.
3. The Attorney General has also voiced a concern about Rule 1.8(c), his point being that it
permits lawyers to accept gifts in situations in which it would be a crime for a government lawyer to
accept the gift. That the ethics rules permit a lawyer to accept a gift does not strip the General
Assembly of its power to prohibit a government lawyer from accepting such a gift. The government
lawyer would not be allowed to plead the ethics rule is defense of an indictment for violating Tenn.
Code Ann. §§ 39-16-102 and 104. Indeed, by committing such an offense, the government lawyer
may have violated Rule 8.4(b) that prohibits a lawyer from committing a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer. Thus, the Committee sees
no need to modify its proposal.
4. The Attorney General has voiced concern about the prohibition in Rule 1.8(f) on a lawyer
accepting direction from one other than the client unless certain requirements are met. This is said
to conflict with the power of the Attorney General to direct assistant attorneys general to take action
over the objection of an agency being represented by the assistant. The Committee believes that this
concern is adequately addressed in Scope, Paragraph [4], and other law. In addition, the Committee
would not characterize the Attorney General as a “person other than the client” within the meaning
of Rule 1.8(f). The Attorney General can be seen as a statutorily authorized representative who
speaks for the ultimate client, the State. Alternatively, the Attorney General is the lawyer with
ultimate responsibility for the representation of the State. In neither case would it be appropriate to
think of the Attorney General as a person other than the client. He is either the alter ego of the
client or the lawyer for the client. In neither case would Rule 1.8(f) be applicable. Consequently, the
Committee sees no need to modify its proposal.
PROPOSED RULE 1.9
CONFLICT OF INTEREST: FORMER CLIENT
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 consents in writing after
consultation.
represent a person in the same or a substantially related matter in which a firm with which the
lawyer formerly was associated had previously represented a client whose interests are materially
adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6
and 1.9(c) that is material to the matter; .
client in a matter, or whose present or former firm has formerly represented a client in a matter, shall
not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules otherwise permit or require with respect to a client, or when the
information has become generally known; or
Rules otherwise permit or require with respect to a client.
[1]After termination of a client-lawyer relationship, a lawyer may not represent another
client except in conformity with this Rule, except that in the case of a government or former
government lawyer, Rule 1.11 applies, rather than paragraphs (a) and (b) of this Rule.
[2]The scope of a "matter" for purposes of this Rule will depend on the facts of a
particular situation or transaction. The appropriateness of the subsequent representation will depend
on the scope of the representation in the former matter, the scope of the proposed representation in
the current matter, and its relationship to the former matter.
[3] The current matter is substantially related to the former matter if the current matter
involves the work the lawyer performed for the former client or there is a substantial risk that
representation of the present client will involve the use of information acquired in the course of
representing the former client, unless that information has become generally known.
[4] Representing one side and then switching to represent the other in the same matter
clearly implicates loyalty to the first client and protection of that client’s confidences. Similar
considerations apply in non-litigation matters. For example, a lawyer negotiating a complex
agreement on behalf of a seller could not withdraw and represent the buyer against the interests of
the seller in the same transaction. Further, just as a lawyer may nor represent both sides
concurrently in the same case, see Rule 1.7(a), the lawyer also may not represent them
consecutively.
[5] Beyond switching sides in the same matter, the concept of substantial relationship
applies to later developments arising out of the original matter. A matter is substantially related if it
involves the work the lawyer performed for the former client. For example, a lawyer may not on
behalf of a later client attack the validity of a document that the lawyer drafted if doing so would
materially and adversely affect the former client. Similarly, a lawyer may not represent a debtor in
bankruptcy in seeking to set aside a security interest of a creditor that is embodied in a document
that the lawyer previously drafted for the creditor.
[6] The substantial relationship standard is employed most frequently to protect the
confidential information of the former client. A subsequent matter is substantially related to an
earlier matter if there is a substantial risk that the subsequent representation will involve the use of
confidential information of the former client in violation of the restrictions these Rules and other
law place on disclosure. Substantial risk exists where it is reasonable to conclude that it would
materially advance the client’s position in the subsequent matter to use confidential information
obtained in the prior representation.
[7] Inquiries concerning the existence, exchange, and potential for use of such confidential
information may themselves raise concerns and difficulties. A concern to protect a former client’s
confidential information would be self-defeating if, in order to obtain its protection, the former client
were required to reveal in a public proceeding the particular communication or other confidential
information that could be used in the subsequent representation. On the other hand, closed or in
camera proceedings may implicate issues of fairness to other parties. Further, the interests of
subsequent clients also militate against extensive inquiry into the precise nature of the lawyer’s
representation of the subsequent client and the nature of exchanges between them
[8] The substantial relationship test attempts to avoid requiring actual disclosure of
confidential information by focusing upon the general features of the matters involved and
inferences as to the likelihood that confidences were imparted by the former client that could be
used to adverse effect in the subsequent representation. The inquiry into the issues involved in the
prior representation should be as specific as possible without thereby revealing the confidential
client information itself or confidential information concerning the second client. Nevertheless, the
subsequent client’s interest in selection of counsel of his or her choice requires that the lawyer be
permitted, within appropriate limits, to defeat any presumption or inference concerning the lawyer’s
receipt or exchange of confidential information.
[9] For example, a lawyer who has represented a business person and learned extensive
private financial information about that person may not then represent that person’s spouse in
seeking a divorce. Similarly, a lawyer who has previously represented a client in securing
environmental permits to build a shopping center would be precluded from representing neighbors
who sought to oppose rezoning of the property, but would not be precluded, on the grounds of a
substantial relationship between the two matters, from defending a tenant of the completed shopping
center in resisting eviction for non-payment of rent.
[10] Information that might be confidential for some purposes under these Rules (so that,
for example, a lawyer would not be free to discuss it publicly) might nonetheless be so general,
readily observable, or of little value in the subsequent litigation that it should not by itself result in a
substantial relationship being found. Thus, a lawyer may master a particular substantive area of the
law while representing a client, but that does not preclude the lawyer from later representing another
client adversely to the first in a matter involving the same legal issues, if the
approach to bargaining in settlement discussions or negotiating business points in a transaction,
willingness or unwillingness to be deposed by an adversary, and financial ability to withstand
extended litigation or contract negotiations. Only when such information will be directly in issue or
of unusual value in the subsequent matter will it be independently relevant in assessing a substantial
relationship.
[11]When lawyers have been associated within a firm but then end their association, the
question of whether a lawyer should undertake representation is more complicated. There are
several competing considerations. First, the client previously represented by the former firm must
be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule
should not be so broadly cast as to preclude other persons from having reasonable choice of legal
counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations
and taking on new clients after having left a previous association. In this connection, it should be
recognized that today many lawyers practice in firms, that many lawyers to some degree limit their
practice to one field or another, and that many move from one association to another several times in
their careers. If the concept of imputation were applied with unqualified rigor, the result would be
radical curtailment of the opportunity of lawyers to move from one practice setting to another and of
the opportunity of clients to change counsel.
[12]Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has
actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with
one firm acquired no knowledge or information relating to a particular client of the firm, and that
lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified
from representing another client in the same or a related matter even though the interests of the two
clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated
association with the firm.
[13] Application of paragraph (b) depends on a situation’s particular facts, aided by
inferences, deductions or working presumptions that reasonably may be made about the way in
which lawyers work together. A lawyer may have general access to files of all clients of a law firm
and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer
in fact is privy to all information about all the firms's clients. In contrast, another lawyer may have
access to the files of only a limited number of client and participate in discussions of the affairs of
no other clients; in the absence of information to the contrary, it should be inferred that such a
lawyer in fact is privy to information about the clients actually served but not those of other clients.
[14] Independent of the question of disqualification of a firm, a lawyer changing
professional association has a continuing duty to preserve confidentiality of information about a
client formerly represented. See Rules 1.6 and 1.9(c).
[15]Except in situations governed by Rule 1.11, Rule 1.9 applies in all circumstances in
which a lawyer has previously represented a client as an advocate, advisor, intermediary, or author of
a legal opinion to be rendered on behalf of a client for use by a third person. Except as provided in
Rule 2.4,Rule 1.9 does not apply to parties being served by a lawyer as a dispute resolution
neutral. If, however, the lawyer's service as a neutral will be materially adverse to a former client and