Governing Rules & Concepts

• Rule 1.9 (Duties to Former Clients): Prohibits representing a new client against a former client in the same or substantially related matter where interests are materially adverse, absent the former client’s informed written consent. Also restricts use or revelation of the former client’s confidential information.
• Rule 1.6 & B&P §6068(e)(1): Confidentiality wraps around 1.9 analysis; possession (or presumed possession) of material confidential information drives disqualification and discipline risk.
• Rule 1.7 (Current vs. Former): Distinguish carefully; mislabeling a still-current client as “former” can convert a 1.9 issue into a 1.7 violation.
• Rule 1.10 (Imputation): Firm-wide imputation applies; limited screening options exist in lateral contexts when implemented properly.
• Rule 1.0.1 (Informed Written Consent): Requires written disclosure of risks/alternatives and the former client’s written agreement.

The Substantial Relationship Test

Courts look at similarities in facts, legal issues, strategy, or access to playbook-level information. If overlap means a lawyer could have obtained material confidential information relevant to the new matter, a conflict is presumed. You need not show actual disclosure; the potential and materiality often suffice.

• Same transaction or dispute: Almost always substantially related.
• Overlapping factual cores: Shared witnesses, documents, or timelines suggest relatedness.
• Playbook knowledge: Pricing, settlement posture, internal controls—if material to the new case—supports relatedness.

Material Adversity

Adversity is not limited to direct, across-the-v. litigation. Seeking rescission of a former client’s contract, attacking the former client’s IP, or undermining a prior position to the detriment of the former client can qualify. Analyze the practical effect on the former client’s interests.

Informed Written Consent (Former Client)

• Disclosure in writing: Nature of the new engagement, how it relates to the prior matter, and risks to the former client.
• Former client’s written agreement: Specific to the new matter; generic historic waivers rarely suffice unless truly advanced and specific.
• Timing: Obtain consent before taking on the adverse engagement; late consents are weak.

Imputation, Screens & Laterals (Rule 1.10)

If a lateral brings a 1.9 conflict, firm-wide disqualification can sometimes be avoided with timely, formal screens, no fee sharing from the matter, written notice to affected clients, and access controls. Screens don’t authorize the personally conflicted lawyer to participate; they protect the firm when rules permit.

Common OCTC Charging Patterns

Evidence That Matters

• Old engagement files defining scope, parties, and the actual work performed (to gauge relatedness).
• New matter intake (dates, parties, issues) and conflict checks with search terms and results.
• Consents & disclosures—advance and matter-specific—showing the former client understood risks and agreed.
• Confidentiality controls (no-share directives, access logs, screen memos, credential restrictions).
• Lateral documentation (screen timing, written notice, fee segregation, and certifications).

Defense Framing & Strategy (High Level)

• Define the matters precisely: Narrow the former engagement’s scope to contest “substantial relationship.”
• Confidentiality materiality: Show that any knowledge is stale or immaterial to the new matter.
• Mens rea & harm: Demonstrate good-faith conflict checks, quick corrective steps, and absence of prejudice to the former client.
• Screen sufficiency: If a lateral issue, prove timely, robust screens and no taint.
• Proportionate sanctions: Align with Standards for negligent conflict analysis vs. knowing adversity to a former client.

No remediation plan here: We reserve step-by-step protocols for retained clients.

Sanctions Context (Overview)

Knowing adversity against a former client in a substantially related matter—especially with confidential-information concerns—can support suspension ranges. Where analysis was negligent, promptly corrected, and produced no prejudice, outcomes trend toward reproval or stayed suspension with conditions.

• Mitigation: No prior discipline, cooperation, strong intake/conflict systems, quick withdrawal once identified, and proof of no misuse of confidences.
• Aggravation: Strategic exploitation of confidences, client harm, pattern across matters, or late/inadequate screens.

Frequent Scenarios & How They’re Framed

Prior Corporate Counsel → Later Suing the Company

Substantial relationship often presumed; defense focuses on distinct matters, stale info, or valid consent.

Lateral Hire with Adverse Portfolio

Imputation dispute; defense centers on timely screens, notice, and lack of exposure/taint.

Advance Waiver Invoked

Validity turns on specificity and informed consent quality; defense shows tailored disclosure matching the new engagement.

FAQ

Do confidentiality duties end when the representation ends?

No. Confidentiality is ongoing; it is central to Rule 1.9 analysis and discipline risk.

Is filing a disqualification motion the same as discipline?

No. Disqualification is a procedural remedy; discipline is separate. But the same record can influence both.

Can a former client unreasonably withhold consent?

Clients control consent. If withheld, proceed only if you can show no conflict and no material relationship—otherwise decline.

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