United States District Court
Northern District Of Illinois
Local Rules
LR83.51.9. Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related matter in
which the person’s interests are materially adverse to the interests of the former client
unless the former client consents after disclosure.
(b) A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which the firm with which the lawyer formerly was associated
had previously represented a client,
(1) whose interests are materially adverse to that person, and
(2) about whom the lawyer had acquired information protected by LR83.51.6 and
LR83.51.9(c) that is material to the matter,
unless the former client consents after disclosure.
(c) A lawyer who has formerly represented a client in a matter or whose present or
former law 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 LR83.51.6 or LR83.53.3 would permit or require with respect
to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as LR83.51.6 or
LR83.53.3 would permit or require with respect to a client.
Committee Comment. General. After termination of a client-lawyer relationship, a lawyer may not represent
another client except in conformity with this rule. The principles in LR83.51.7
determine whether the interests of the present and former client are adverse.
Thus, a lawyer could not properly seek to rescind on behalf of a new client a
contract drafted on behalf of the former client. So also a lawyer who has
prosecuted an accused person could not properly represent the accused in a subsequent
civil action against the government concerning the same transaction.
The scope of a “matter” for purposes of this rule may depend on the facts of a particular situation
or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has
been directly involved in a specific transaction, subsequent representation of
other clients with materially adverse interests clearly is prohibited. On the
other hand, a lawyer who recurrently handled a type of problem for a former
client is not precluded from later representing another client in a wholly distinct
problem of that type even though the subsequent representation involves a
position adverse to the prior client. Similar considerations can apply to the
reassignment of military lawyers between defense and prosecution functions within
the same military jurisdiction. The underlying question is whether the lawyer was
so involved in the matter that the subsequent representation can be justly
regarded as a changing of sides in the matter in question.
Lawyers Moving Between Firms. 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.
Reconciliation of these competing principles in the past has been attempted
under two rubrics. One approach has been to seek per se rules of
disqualification. For example, it has been held that a partner in a law firm is conclusively
presumed to have access to all confidences concerning all clients of the firm.
Under this analysis, if a lawyer has been a partner in one law firm and then
becomes a partner in another law firm, there may be a presumption that all
confidences known by the partner in the first firm are known to all partners in the
second firm. This presumption might properly be applied in some circumstances,
especially where the client has been extensively represented, but may be
unrealistic where the client was represented only for limited purposes. Furthermore,
such a rigid rule exaggerates the difference between a partner and an associate in
modern law firms.
The other rubric formerly used for dealing with disqualification is the
appearance of impropriety proscribed in Canon 9 of the ABA Model Code of Professional
Responsibility. This rubric has a twofold problem. First, the appearance of
impropriety can be taken to include any new client-lawyer relationship that might
make a former client feel anxious. If that meaning were adopted,
disqualification would become little more than a question of subjective judgment by the
former client. Second, since “impropriety” is undefined, the term “appearance of impropriety” is question-begging. It therefore has to be recognized that the problem of
disqualification cannot be properly resolved either by simple analogy to a lawyer
practicing alone or by the very general concept of appearance of impropriety.
Confidentiality. Preserving confidentiality is a question of access to information. Access to
information, in turn, is essentially a question of fact in particular
circumstances, 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 firm’s clients. In contrast, another lawyer may have access to the files of only a
limited number of clients 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.
Application of section (b) depends on a situation’s particular facts. In such an inquiry, the burden of proof should rest upon
the lawyer whose disqualification is sought.
Section (b) operates to disqualify the lawyer only when the lawyer involved
has actual knowledge of information protected by LR83.51.6 and LR83.51.9(c).
Thus, if a lawyer while with one law 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 manner even though the
interests of the two clients conflict. See LR83.51.10(c) for the restrictions on a firm once a lawyer has terminated
association with the firm.
Independent of the question of a firm, a lawyer changing professional
association has a continuing duty to preserve confidentiality of information about a
client formerly represented. See LR83.51.6 and LR83.51.9.
Adverse Positions. The second aspect of loyalty to a client is the lawyer’s obligation to decline subsequent representations involving positions adverse
to a former client arising in substantially related matters. This obligation
requires abstention from adverse representation by the individual lawyer
involved.
Information acquired by the lawyer in the course of representing a client may
not subsequently be used or revealed by the lawyer to the disadvantage of the
client. However, the fact that a lawyer has once served a client does not
preclude that lawyer from using generally known information about that client when
later representing another client.
Disqualification from subsequent representation is for the protection of
former clients and can be waived by them. A waiver is effective only if there is
disclosure of the circumstances, including the lawyer’s intended role in behalf of the new client.
With regard to an opposing party’s raising a question of conflict of interest, see Comment to LR83.51.7. With
regard to disqualification of a firm with which a lawyer is or was formerly
associated, see LR83.51.10.