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
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
eventuates between the clients, the privilege will not protect any such communications, and the
clients should be so advised.
[20] As to the duty of confidentiality, joint representation will almost certainly be inadequate
if one client attempts to keep something in confidence between the lawyer and that client, which is
not to be disclosed to the other client. This is so because the lawyer has an equal duty of loyalty to
each client, and each client has the right to be informed of anything bearing on the representation
that might affect that client’s interests and to expect that the lawyer will use that information to that
client’s benefit. See Rule 1.4. The lawyer should, at the outset of the joint representation and as
part of the process of obtaining each client’s consent, advise each client that the lawyer will share all
information material to the representation with each of the jointly represented clients, unless
specifically instructed by one of the clients not to do so. The lawyer should also advise each client
that, if any client later insists that some matter material to the representation should be kept from the
other, the lawyer will abide by the client’s instructions to maintain the confidentiality of the
specified information, but that it is likely that the lawyer will be required to withdraw from the
representation. In limited circumstances, however, it may be appropriate for the lawyer to proceed
with the representation when the clients have agree, after being properly informed, that the lawyer
will keep certain information confidential.
[21]Subject to the above limitations, each client in the joint representation has the right to
loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a
former client. Each client also has the right to discharge the lawyer as stated in Rule 1.16.
[22]When a lawyer represents a client in a partisan role, whether as an advocate, an advisor,
or the author of a legal opinion to be rendered on behalf of the client for use by a third person, this
rule provides special protections for the client to assure that the lawyer’s loyalty will not be diluted
by interests of other clients or interests of the lawyer or third persons. This rule, however, is not
applicable to conflicts of interest affecting clients the lawyer undertakes to serve as an intermediary.
If, for example, business persons or members of a family are seeking the lawyer’s advice or
assistance in a non-adversarial effort to accomplish a common objective with respect to the
formation, conduct, modification or termination of a consensual relation between them, such as the
formation of a business or a purchase or sale of property, Rule 2.2 applies. Similarly, if the
effectuation of an estate plan or other gratuitous transfer entails the formation, modification or
termination of a consensual legal relationship between clients, and the lawyer acts as an
intermediary in connection with the transaction, Rule 2.2 applies. Otherwise, this Rule applies. Nor
is this rule applicable to conflicts of interest affecting parties to a dispute who a lawyer undertakes
to serve as a dispute resolution neutral. See Rule 2.4.
See Rule 1.0(j)
“Consents in Writing”See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Materially”See Rule 1.0(g)
PROPOSED RULE 1.8
CONFLICT OF INTEREST:PROHIBITED TRANSACTIONS
ownership, possessory, security or other pecuniary interest adverse to a client unless:
reasonable to the client and are fully disclosed and transmitted in writing to the client
in a manner which can be reasonably understood by the client; and
the transaction; and
the client, unless the client consents after consultation, except as otherwise permitted or required by
Rule 1.6 or Rule 3.3.
parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift,
except where the client is related to the donee.
agreement giving the lawyer literary or media rights to a portrayal or account based in substantial
part on information relating to the representation.
contemplated litigation, except that:
may be contingent on the outcome of the matter; and
litigation on behalf of the client.
or with the client-lawyer relationship; and
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to
guilty or nolo contendere pleas, unless:
counsel in the transaction; and
and nature of all the claims or pleas involved and of the participation of each person in the
settlement.
enter into an agreement with a prospective, current, or former client to
prospectively limit the lawyer’s liability to the client for malpractice; and
shall not settle a claim for such liability, unless:
the client is represented in the matter by independent counsel; or
manner which can reasonably be understood by the client, advises the client
to seek the advice of independent counsel, and affords the client a reasonable
opportunity to do so.
in a representation directly adverse to a person whom the lawyer knows is represented by the other
lawyer, unless the client consents in writing after consultation regarding the relationship.
A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:
[1] As a general principle, all transactions between client and lawyer should be fair and
reasonable to the client. In such transactions a review by independent counsel on behalf of the client
is often advisable. Furthermore, a lawyer may not exploit information relating to the representation
to the client's disadvantage. For example, a lawyer who has learned that the client is investing in
specific real estate may not, without the client's consent, seek to acquire nearby property where
doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however,
apply to standard commercial transactions between the lawyer and the client for products or services
that the client generally markets to others, for example, banking or brokerage services, medical
services, products manufactured or distributed by the client, and utilities services. In such
transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph
(a) are unnecessary and impracticable.
[2] A lawyer may accept a gift from a client, if the transaction meets general standards of
fairness. For example, a simple gift such as a present given at a holiday or as a token of
appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument
such as a will or conveyance, however, the client should have the detached advice that another lawyer
gift is not substantial.
[3]An agreement by which a lawyer acquires literary or media rights concerning the
conduct of the representation creates a conflict between the interests of the client and the personal
interests of the lawyer. Measures suitable in the representation of the client may detract from the
publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer
representing a client in a transaction concerning literary property from agreeing that the lawyer's fee
shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and
paragraph (j).
[4] Rule 1.8(f) requires disclosure of the fact that the lawyer's services are being paid for by
a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning
confidentiality and Rule 1.7 concerning conflict of interest. Where the client is a class, consent may
be obtained on behalf of the class by court-supervised procedure.
[5] Paragraph (h) is not intended to apply to customary qualifications and limitations in
legal opinions and memoranda.
personal and is not imputed to members of firms with whom the lawyers are associated. See Rule
1.10.
[7]Paragraph (j) states the traditional general rule that lawyers are prohibited from
acquiring a proprietary interest in litigation. This general rule, which has its basis in common law
champerty and maintenance, is subject to specific exceptions developed in decisional law and
continued in these Rules, such as the exception for reasonable contingent fees set forth in Rule 1.5
and the exception for certain advances of the costs of litigation set forth in paragraph (E).
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Knowingly” and “Knows”See Rule 1.0(f)
“Reasonable” and “Reasonably” See Rule 1.0(i)
“Substantial”See Rule 1.0(l)
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