Freivogel on Conflicts
Former Client - Part I

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Former Client - Part II

Note: due to the length of Former Client, it has been divided into two pages: Part I and Part II.

Table of Contents of this Page (Part I)

  • Introduction
  • When Does a “Current Client” Become a “Former Client”?
  • What is Substantial Relationship?
  • What is “Materially Adverse”?
  • “Accommodation Client”
  • Playbook

Part II (Click here



  • Other Cases and Opinions on Former Client


Model Rule 1.9(a) states as follows:

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 that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

        We discuss obligations with respect to current clients at the section entitled, "Current Client and Direct Adversity."  To go there, click here.  For purposes of this section, the key provision regarding current clients is at Model Rule 1.7(a):

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless . . . .

       Thus, it makes a difference, for conflicts purposes, whether the client is "current" or "former."  If the client is current, the lawyer may not be directly adverse without consent.  As to former clients, the lawyer may be directly adverse unless the new matter is "substantially related" to what the lawyer did for the former client.

        This section is built around several issues:  (1) When does a current client become a former client - and thus trigger the substantial relationship test?; and (2) What is "substantially related"?  Included is a discussion of the "accommodation client" concept.  Finally, the section deals with an important subset of the substantial relationship issue - what Professor Wolfram refers to as the "playbook view."  Charles W. Wolfram, Former-Client Conflicts, 10 Geo. J. Legal Ethics 677 (1997).  The "playbook view" refers to situations where a lawyer learns from a current client how the client approaches - or specific employees of the client approach - legal matters, thereby giving the lawyer a supposed advantage when opposing that person or entity as a former client.  More about Professor Wolfram's article and the "playbook view" later.

        Another very helpful source on these issues is Joan C. Rogers, Conflicts of Interest: Representation Adverse to Former Client, Current Reports, August 14, 2002, p. 490, ABA/BNA Law. Man. Prof. Conduct, now pages 51:201-243 in the large binder.  It is an excellent 30-page article on former clients.  It includes such subjects as client mergers/asset sales, joint defense arrangements, "accommodation clients," "playbook" information, advance consents, and much, much more.  It is the best writing on these subjects since Professor Wolfram's article, cited above.  Anyone with a former client issue should consult the Wolfram and Rogers articles.  This site will continue to add cases on these subjects. Here is another one: Joan C. Rogers, Former Client, 30 Law. Man. Prof. Conduct 738 (November 19, 2014). This is a brave, and nuanced, attempt to make sense of the disparate approaches courts are taking in applying the substantial relationship test under Model Rule 1.9(a). Extremely valuable and highly recommended.

        N.Y. Op. 1008 (2014) is a clear exposition of current client vs. former client conflicts.

        Warning:  More cases deal with former client issues than just about any other issue relating to conflicts of interest.  The cases also tend to be more fact-specific than those in other areas - particularly as to what is "substantially related."  Thus, many of them have relatively little value as precedent.  It is the philosophy of this site to be as comprehensive as possible in including cases and opinions.  However, given the large number of cases on these subjects and their fact-specific nature, we will cite leading examples without trying to set a record for number of cases and opinions cited.

        Treatise. Hazard, Hodes, & Jarvis §§ 13.2-13.12.

        Article.  Amanda Kay Morgan, Screening out Conflict-of-Interests Issues Involving Former Client: Effectuating Client Choice and Lawyer Autonomy while Protecting Client Confidences, 28 J. Legal Prof. 197 (2004).

When Does a "Current Client" Become a "Former Client"?

        When confronted with a conflict of interest argument, a lawyer would love to be able to fish out of her file a letter to the client that says the following:

This matter has concluded.  We plan to do no further work for you, and you are no longer our client.

        Lawyers hate to write letters like that.  A truly effective letter may offend the client.  Moreover, the lawyer wants to maintain a bond with the client so that it will send more business.  Thus, these letters are rarely written, and the courts must resort to other indicia.  Following are examples of cases where the courts did so:

        Law firm's failure to document end of relationship keeps it in case.  Jenifer v. Fleming, Ingram & Floyd, P.C., 2008 U.S. Dist. LEXIS 5492 (S.D. Ga. Jan. 25, 2008).

        Fascinating discussion of situation where all the work was done but no “official” termination had occurred.  The court found that the representation was current, but held that no harm would result to that client by allowing the law firm to continue on the other side of this unrelated case.  Metropolitan Life Ins. Co. v. The Guardian Life Ins. Co. of America, 2009 U.S. Dist. LEXIS 42475 (N.D. Ill. May 18, 2009).

       Fenik v. One Water Place, LLC, 2007 U.S. Dist. LEXIS 10096 (N.D. Fla. Feb. 14, 2007).  Law firm had ceased representing plaintiff on other matters several months prior to this case being filed.   That law firm appeared for the defendant in this case.  The court denied plaintiff's motion to disqualify law firm, noting, among other things, that plaintiff hired a different law firm to file this case.

        Jones v. Rabanco, Ltd., 2006 U.S. Dist. LEXIS 53766 (W.D. Wash. Aug. 3, 2006).  Work had ceased three years prior, but: (1) client's officers stated they believed it was still a client; (2) the law firm in question was listed as one to receive notice of a breach of the settlement agreement, which was to remain in force until 2011; (3) the law firm had not written a letter saying the representation had ceased; (4) the law firm's books showed the matter as "open;" and (5) the law firm was incurring the cost of storing 49 boxes of documents in case they were needed for further developments in the prior matter.  Court held, "current client."

        Kabi Pharmacia AB v. Alcon Surgical, Inc., 803 F. Supp. 957 (D. Del. 1992) The law firm had not given the client advice for "many months," but the court held that it was still a current client.

        Research Corp. Tech. v. Hewlett-Packard Co., 936 F. Supp. 697 (D. Ariz. 1996).  One brief, but recent, contact was enough to create a current client relationship.

        JTH Tax, Inc. v. H & R Block Eastern Tax Services, Inc., 2002 U.S. App. LEXIS 477 (4th Cir. 2002).  A law firm was representing JTH against Block in federal court, while representing Block in a state court action.  The district court held that the law firm did not violate Rule 1.7(a), because the state court action was "dormant."  The court then did a former-client analysis.

        Int'l. Bus. Machines Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978).  A lawyer handled a series of labor matters for IBM.  Shortly after completion of the most recent one, the lawyer showed up on the other side of an antitrust case.  The court upheld the district court's disqualification of the firm and said:

Although [the firm] had no specific assignment from IBM on hand on the day the antitrust complaint was filed and even though [the firm] performed services for IBM on a fee for service basis rather than pursuant to a retainer arrangement, the pattern of repeated retainers, both before and after the filing of the complaint, supports the finding of a continuous relationship.

        Oxford Systems, Inc. v. CellPro, Inc., 45 F. Supp. 2d 1055 (W.D. Wash. 1999).  The law firm had done all a company's work in the State of Washington for 13 years.  At the time it took on a matter adverse to the company, nothing had been pending for about a year.  Nevertheless, the court held that the company was a current client because of the company's General Counsel's subjective belief that it was a current client.  To the same effect (although individual), Shearing v. Allergan, Inc., 1994 WL 382450 (D. Nev. 1994).

        McCook Metals L.L.C. v. Alcoa, 2001 U.S. Dist. LEXIS 497 (N.D. Ill. 2001).  Alcoa had a brief flirtation with Jenkens & Gilchrist ("J&G"), which included the exchange of general information.  Alcoa assigned a trademark search to J&G, which consumed just several days.  A few days after the trademark search concluded, J&G entered into litigation against Alcoa for McCook.  Alcoa moved to disqualify J&G, and the court denied the motion.

        Riggs Nat'l. Bank of Washington, D.C. v. Calumet-gussin, 1992 U.S. Dist. LEXIS 16475 (D.D.C. 1992).   A law firm handled several matters for a client.  When the client refused to pay a total of $270,000 in overdue fees, the firm withdrew from one case.  The only other pending matter, an administrative proceeding, concluded at about the same time.  Shortly after all this occurred a bank retained the firm to sue the "former client."  The court refused to disqualify the firm.  The court stressed that at the time the firm severed its relationship with the former client, the firm knew nothing of the bank's claim against the former client.

        Artromick Int'l., Inc. v. Drustar, Inc., 134 F.R.D. 226 (S.D. Ohio 1991).  About a year had elapsed since the law firm had done any work for the client.  A small invoice remained outstanding.  The firm sent at least one piece of promotional material to the client during that year.  Nevertheless, the court refused to disqualify the firm when it showed up on the other side of a case.  A case that cited Artromick on the promotional material point is Edelstein v. Optimus Corp., 2010 U.S. Dist. LEXIS 108351 (D. Neb. Sept. 24, 2010). 

        Manoir-Electroalloys, Inc. v. Lachmann, 711 F. Supp. 188 (D.N.J. 1989).  A law firm had done many things for a client "from the 'seventies" until1983-84.  It sent a "dear friend" letter to the "client" in 1988.  It turned up on the other side of a matter shortly thereafter.  It was one of those situations where a "we-don't-represent-you" letter would have been nice.  In disqualifying the firm, the court commented:

[The firm] cannot, of course, isolate any point in time at which [the "client"] became a "former client" and relies solely on the fact that the last piece of business [the firm] was called upon by [the "client"] to handle preceded the filing of the . . . action by four years.

        Distinguishes Manoir-Electroalloys (just above) Spiniello Companies v. Metra Industries, Inc., 2006 U.S. Dist. LEXIS 72961 (D.N.J. Oct. 6, 2006).  Court did not find client to be current where lawyer had handled "two discrete and concluded matters several years ago (in 2001 and again in 2003)."  

        Heathcoat v. Santa Fe Int'l. Corp., 532 F. Supp. 961 (E.D. Ark. 1982).  A law firm did a simple will for a client in 1966.  In 1982 she moved to disqualify the firm in a case involving whether misrepresentations had been made to her in the sale of property.  The only event that intervened was the firm sent her a "dear friends" letter about its services.  The court refused to disqualify the firm.

        Gray v. Gray, 2002 Tenn. App. LEXIS 675 (Tenn. App. September 19, 2002).  Lawyer did a will for a client and then nothing further for that person for ten years.  The court held that, ten years later, the lawyer could be adverse to the person, even though the lawyer had not written a termination letter after completing the will.

        Ferguson Electric Co. v. Suffolk Construction Co., 1998 Mass. Super. LEXIS 289 (Mass. Super. 1998).  The lawyer was not clear in communications with the client that the work had been completed and the relationship terminated, so the court found a current relationship.

        Abbott Laboratories v. Centaur Chem. Co., Inc., 497 F. Supp. 269 (N.D. Ill. 1980).  An outside lawyer was handling an administrative proceeding for a company.  When the matter reached a stage of relatively little activity, it was turned over to an in-house lawyer.  After about 11 months the outside lawyer showed up on the other side of another matter.  The company claimed that it was a current client because it "might" have to involve the lawyer again in the earlier matter.  The court did not buy that argument and refused to disqualify the lawyer in the later matter.

        Mindscape, Inc. v. Media Depot, Inc., 973 F. Supp. 1130 (N.D. Cal. 1997).  Although the firm claimed the representation had ended, the court noted that the firm still had not cleaned up a patent mistake it had made, the firm still had a power of attorney from the "client," and the firm had never specifically advised the "client" that the representation had ended.  Accordingly, the court found that the relationship was a current-client one.

        “Framework” Retainer Agreements.  Banning Ranch Conservancy v. Superior Court, No. 2011 Cal. App. LEXIS 316 (Cal. App. March 22, 2011).  The client and law firm had retainer agreements that provided that the terms would apply for each new matter.  In construing the agreements the court held that the agreements did not mean that the client would remain a client after the work terminated.

        Voicenet Communications, Inc. v. Pappert, 2004 U.S. Dist. LEXIS 6429 (E.D. Pa. April 5, 2004).  Fifteen months passed since the last work.  The court held that the client became a former client.

       See, too, SWS Financial Fund A v. Salomon Bros., Inc., 790 F. Supp. 1392 (N.D. Ill. 1992), and G.D. Searle & Co. v. Nutrapharm, Inc., 1999 U.S. Dist. LEXIS 5963 (S.D.N.Y. 1999).

        In Schiefler v. Warner, Norcross & Judd, 2006 Mich. App. LEXIS 471 (Mich. App. Feb. 23, 2006), the firm had represented the co-owner of a closely-held entity "for decades," so it could not claim that he recently became a former client, so that it could be adverse to him in litigation.

        Medical Diagnostic Imaging, PLLC v. Carecore Nat., LLC, 2008 U.S. Dist. LEXIS 23596 (S.D.N.Y. March 25, 2008).  Two doctors affiliated with a defendant intervened in this case to move to disqualify a law firm for the plaintiffs.  In a highly fact-intensive analysis the magistrate judge, in this opinion, held that the doctors were former, not current, clients of the law firm, even though the doctors pointed to circumstances suggesting they were current clients.

        Rohm & Haas Co. v. Dow Chem. Co., 4309-CC, (Del. Ch. Feb. 12, 2009).  Wachtell represented Dow in 2007 and 2008 in an employment matter.  It later represented Rohm & Haas in this case against Dow.  Dow moved to disqualify Wachtell, on both current client and former client principles, and in this brief letter opinion the chancellor denied the motion.  In mid-2008 Wachtell, without objection from Dow, wound up across the table from Dow, representing Rohm & Haas in merger negotiations with Dow.  That, the court said, should have been notice to Dow that Wachtell was no longer its law firm, thus dispensing  with Dow's current client argument.

         Applied Tech. Ltd. v. Watermaster of Amer., Inc., 2009 U.S. Dist. LEXIS 25183 (S.D.N.Y. Mr. 26, 2009).  The court did not find that the client was a current client of a law firm even though the law firm had sent the former client a “client file release form” and a newsletter.  The law firm said it sent those items to all current and former clients.

        Leber Associates, LLC v. The Entertainment Group Fund, Inc., 2001 U.S. Dist. LEXIS 20352 (S.D.N.Y. Dec. 7, 2001).  Plaintiff filed this action in 2000.  Plaintiff moved to disqualify Defendant's law firm ("Law Firm") because Law Firm had prepared Plaintiff's will and trust in 1997.  Although Plaintiff claimed continuing contacts with Law Firm since 1997, the court discounted those claims because Law Firm's partner testified that he did not remember the contacts and did not bill time for them.  Thus, the court found that Plaintiff was a former, versus current, client.

        Post-Estate Planning Ministerial Work not Current Representation.  Yang Enterprises, Inc. v. Yang, 2008 Fla. App. LEXIS 11865 (Fla. App. Aug. 7, 2008).  This is an unremarkable opinion affirming the trial court’s denial of a motion to disqualify.  The movant had waited years to make the motion.  While the decision was based largely on a waiver by passage of time, the court made this interesting statement as to whether the client was current or former:

Petitioners argued below that they are current clients of Broad and Cassel and relied primarily on two cover letters sent from a paralegal in Broad and Cassel's Orlando office in 2004 and a paralegal's bill for minor changes to their estate file in 2007. None of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents.

        Carnegie Cos., Inc. v. Summit Props., Inc., 2009 Ohio App. LEXIS 3973 (Ohio App. Sept. 9, 2009).  Law firm was sloppy regarding its engagement letter and lack of a termination letter.  As a result, the trial court’s finding of current client not against the manifest weight of the evidence.  In Carnegie Cos., Inc. v. Summit Props., Inc., 2012 Ohio App. LEXIS 1151 (Ohio App. March 28, 2012), the court upheld an award of $80,000 to the moving party for the opponent's bad faith refusal to withdraw in the face of the conflict.

        Written Retainer Controlled.  California Earthquake Auth. v. Metropolitan West Securities, LLC, 2010 U.S. Dist. LEXIS 44016 (E.D. Cal. May 5, 2010).  In 2002 Law Firm and a state agency ("Agency") entered into a written retainer agreement.  Among other things, the agreement provided that Law Firm would have to give Agency thirty days written notice if it intended to terminate the relationship.  Law Firm did three hours work for the Agency during 2002 and did no work for Agency after that.  Law Firm never gave Agency written notice of termination.  In 2009 Law Firm appeared for the defendant in this case adverse to Agency.  Agency moved to disqualify Law Firm, and in this opinion the court granted the motion.  Basically, the court said that the absence of written notice of termination meant that Agency was a current client of Law Firm.  The court further said that written contracts between lawyers and clients should be "read expansively and not parsed to favor the lawyer."

        Revise Clothing, Inc. v. Joe's Jeans, Inc., 2010 U.S. Dist. LEXIS 12766 (S.D.N.Y. Feb. 1, 2010).  The court refused to find that Plaintiff was a "current" client of Law Firm, noting: (1) the earlier retainer was narrow, and the matter had terminated; (2) the fact that the settlement agreement of the earlier matter designated Law Firm to receive notice for Plaintiff was not determinative; and (3) the fact that Law Firm continued to send promotional E-mail bulletins ("blasts") to Plaintiff was also not determinative.

        Laclette v. Galindo, 109 Cal. Rptr. 3d 660 (Cal. App. 2010).  The issue was whether the California one-year statute of limitations was tolled by the defendant/lawyer's continuing representation of the plaintiff/client.  In this opinion the appellate court held there was a triable issue whether the client reasonably believed the representation continued.  There had been an agreement to settle the underlying dispute, which required continuing payments by the parties, and the defendant/lawyer had remained counsel of record in the underlying matter.

        The Gerffert Co., Inc. v. Dean, 2011 U.S. Dist. LEXIS 15530 (E.D.N.Y. Feb. 16, 2011).  Factors leading to conclusion that the relationship was current included the "absence of an expressed cessation" of the relationship, Lawyer's continuing to send invoices to the defendant, and continuing offers to mediate the dispute among the parties.

        Parallel Iron, LLC v. Adobe Sys. Inc., 2013 U.S. Dist. LEXIS 29382 (D. Del. March 4, 2013).  Patent infringement case.  Defendant moved to disqualify Plaintiff's law firm ("Law Firm") because Law Firm had quite recently done a series of patent opinions for Defendant.  In this opinion the court granted the motion.  The court found that Defendant was a current client of Law Firm because neither Defendant nor Law Firm had definitively terminated the relationship.

        TQP Dev., LLC v. Adobe Sys. Inc., 2013 U.S. Dist. LEXIS 97896 (E.D. Tex. July 13, 2013).  Lawyer, with Law Firm, represented Adobe on several matters.  Lawyer's last communication with Adobe personnel was in February 2012.  Lawyer and Law Firm filed this action against Adobe in August 2012.  Adobe moved to disqualify Lawyer and Law Firm.  In this opinion the magistrate judge granted the motion.  In finding that Adobe was a current client, the court first noted the "reasonable notice" provision in Texas' version of MR 1.16(d).  (Evidently, there was no notice.)  The court also held that Adobe had a "reasonable expectation" that Law Firm would retain responsibility for one of the earlier matters.

        Poor illustration but one nonetheless, Roderick v. Ricks, 54 P.3d 1119 (Utah 2002).

        See, too, D.C. Op. 272 (1997).

What is "Substantial Relationship"?

        Model Rule 1.9(a) is quoted in the Introduction.  It specifically adopts the "substantial relationship" rubric.  Comments [1], [2], and [11] contain some language suggesting a definition.  New Comment [3], adopted by the ABA House of Delegates in February 2002, does a pretty good job of explaining what it is.  It begins with the following language, then follows with a number of examples:

[3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.  For example, . . .

        The Restatement attempts to define "substantial relationship" in the black letter of § 132, and is similar to the above comment:

(1) the current matter involves the work the lawyer performed for the former client; or?

(2) 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.?

        The ABA Model Code did not use the term at all.  The judge in T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F. Supp. 265 (S.D.N.Y. 1953), introduced it in the following sentence:

The former client need show no more than the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client.

(emphasis added)

        The court did not attempt a comprehensive definition of the term, but did apply it to facts before the court.  The court said:

In sum, enough appears to show that Mr. Cooke's present representation deals with matters as to which his former client reposed confidence[s] in him. Hence, I hold that Mr. Cooke is disqualified from acting as counsel for the plaintiff in this case in any capacity so long as Universal is a party defendant, and the motion is granted to this extent.

        What about Loyalty to Former Clients? Thus, the use of confidences gained from the former client plays an important role in application of the substantial relationship standard.  This point is made in Professor Wolfram's article, Charles W. Wolfram, Former-Client Conflicts, 10 Geo. J. Legal Ethics 677 (1997).  This is a terrific article that covers the subject of the title comprehensively.  Anyone wanting an exhaustive review of a great number of cases and ethics opinions should start with Professor Wolfram's article.  He points out that while the two pillars of conflict of interest rules are loyalty and confidentiality, loyalty plays (or at least should play) little or no role in defining responsibilities to former clients.  Professor Wolfram also notes that most of the cases, and the better decided ones, emphasize "the client's legitimate expectation in the confidentiality of information imparted to the lawyer."

        More on Loyalty. Ecclesiastical Insurance Office PLC v. Lady Iam Hazel Virginia Whitehouse-Grant-Christ, [2017] ScotCS CSIH_33 (26 May 2017). The Scottish appellate court, in a 2-1 decision, denied a disqualification on the basis that there is no duty of loyalty to a former client. The opinions include a review of authorities on the loyalty issue from leading common law jurisdictions, including the U.S. In Alters v. Villoldo, No. 3D17-715 (Fla. App. Sept. 6, 2017), the court said there is no duty of loyalty to former clients.

        Following are examples of the different ways courts articulate the substantial relationship test.  Analytica v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983) is frequently cited.  It said that a substantial relationship exists if a "lawyer could have obtained confidential information in the first representation that would have been relevant in the second."  The court said that it is irrelevant whether the lawyer actually obtained such information.  In Integrated Health Services of Cliff Manor, Inc. v. THCI Co. LLC, 327 B.R. 200 (D. Del. 2005), the court quoted language from Satellite Fin. Planning Corp. v. First Nat’l. Bank of Wilmington, 652 F. Supp. 1281, 1284 (D. Del. 1987) cautioning that courts should not:

"allow [their] imagination[s] to run free with a view to hypothesizing conceivable but unlikely situations in which confidential information 'might' have been disclosed which would be relevant to the present suit".

        Substantial Relationship in New Jersey.  City of Atlantic City v. Trupos, 2010 N.J. LEXIS 386 (N.J. April 26, 2010).   The New Jersey Supreme Court announced this rule:

. . . for purposes of RPC 1.9, matters are deemed to be "substantially related" if (1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

        In Harsh v. Kwait, 2000 Ohio App. LEXIS 4636 (Ohio App. 2000), the court said that matters were substantially related if there is some "commonality of issues" or "clear connection" between the matters.

        In Reardon v. Marlayne, 416 A.2d 852 (N.J. 1980), the court said that a substantial relationship exists where the "adversity between the interests of the attorney's former and present clients has created a climate for the disclosure of relevant confidential information."

        Kentucky abandoned the "appearance of impropriety" standard when it adopted its version of the Model Rules.  Nevertheless, the court in Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997), applied it in a former client situation and ordered the lawyer disqualified.  There the lawyer had obtained information from a client but claims he did not remember any of it.  The Arkansas Supreme Court also based a former representation disqualification on an appearance of impropriety, even though Arkansas had adopted the Model Rules, McAdams v. Ellington, 970 S.W.2d 203 (Ark. 1998).

       Importance of Loyalty in Former Client Analysis.  In re I Successor Corp., 321 B.R. 640 (S.D.N.Y. 2005).  The court said that loyalty was just as important as confidentiality.  Pound v. Cameron, 36 Cal. Rptr. 3d 922 (Cal. App. 2005), takes the majority view that confidentiality is key.

        Lawyer Attacking Work Done for a Former Client ("Own Work"). While it is our view that the focus on former-client cases is, or should be, on preserving the former client’s confidences or not using former client’s confidences against the former client, an exception has been expressed by some.  That is, a lawyer may not harm a former client by attacking the work the lawyer had done for the former client.  For example, a lawyer should not attack a patent the lawyer had obtained for the former client.  Restatement § 132 cmt. d(ii) takes this view.  Texas Rule 1.09(a)(1) also contains this rule.  Cases that follow the rule are Oasis West Realty, LLC v. Goldman, 2011 Cal. LEXIS 4370 (Cal. May 16, 2011) (lawyer should not have lobbied against project that he earlier worked on); Franklin v. Callum, 782 A.2d 884 (N.H. 2001),  Sullivan County Regional Refuse Disposal Dist. v. Town of Acworth,  686 A.2d 755 (N.H. 1996), and In re Basco, 221 S.W.3d 637 (Tex. 2007).  Hazard, Hodes, & Jarvis discuss the concept at §13.6.  Cases cited in the Reporter’s Note to Restatement § 132 cmt. d(ii) are: Griffith v. Taylor, 937 P.2d 297 (Alaska 1997); In re Breen, 830 P.2d 462 (Ariz. 1992); Gilbert v. Nat’l. Corp. for Housing Partnerships, 84 Cal. Rptr. 2d 204 (Cal. App. 1999); In re Williams, 309 N.E.2d 579 (Ill. 1974); Price v. Price, 733 N.Y.S.2d 420 (N.Y. App. 2001).  Florida Bar ethics opinions that agree with the Restatement are Fla. Ops. 68-16 (1968) and 59-32 (1960).  Similar language appears in the Comment to Florida Rule 4-1.9.  Dr. N. Vankoughnett Dental Corp. v. Gallagher, 2012 SKCA 110 (CanLII) (Ct. App. Sask. Nov. 11, 2012) (rule stated); Greater Vancouver Reg’l Dist. v. Melville, 2007 BCCA 410 (CanLII) (Ct. App. of Brit. Col. Aug. 9, 2007) (rule implied). Exterior Systems, Inc. v. Noble Composites, Inc., 175 F. Supp. 2d 1112 (N.D. Ind. 2001) is somewhat related.

        More on Attacking Own Work. ASI Holding Co., Inc. v. Royal Beach & Golf Resorts, LLC, 2015 WL 1928615 (Fla. App. April 29, 2015). Ten years ago Law Firm represented ASI seeking to enforce a NDA. In this case Law Firm is opposing ASI, who is seeking to enforce the same NDA. ASI moved to disqualify Law Firm. The trial court denied the motion. In this opinion the appellate court reversed. First, the court was not impressed by the passage of time. Second, the court said that what Law Firm was doing in this case was tantamount to attacking its own work.

        . . . What If the Work Being Attacked no Longer Belongs to Former Client?  In Telectronics Proprietary, Ltd. v. Medtronic, Inc., 836 F.2d 1332 (Fed. Cir. 1988), a lawyer who worked for a client on a patent application could later challenge the validity of the patent because the patent had been assigned to a company that the lawyer had never represented.  Similarly, in Alchemy II, Inc. v. YES! Entertainment Corp., 844 F. Supp. 560 (C.D. Cal. 1994), the court, citing Telectronics, held that a law firm that had defended a copyright could later argue its limits where the law firm was not opposing a former client, but rather a licensee.

        David Hricik and Jae Ellis, Disparities in Legal Ethical Standards Between State and Federal Judicial Systems: An Analysis and a Critique, 13 Geo. J. Legal Ethics 577 (2000).  This article contains an excellent discussion of how Texas state and federal courts treat the substantial relationship test.

         Patent Litigation.  Superguide Corp. v. DirecTV Enterprises Inc., 141 F. Supp. 2d 616 (W.D.N.C. 2001).  Plaintiff Superguide hired Dorman to represent it.  The defendants filed a third-party action against Gemstar.  Gemstar moved to disqualify Dorman, because Dorman previously represented Gemstar as lead counsel in all its patent litigation.  Dorman had also counseled Gemstar on a license agreement that is the subject of this action.  The court found that there was a substantial relationship between this litigation and what Dorman had done for Gemstar previously, and ordered that Dorman be disqualified.  In Asyst Techs., Inc. v. Empak, Inc., 962 F. Supp. 1241 (N.D. Cal. 1997), the court disqualified a law firm challenging two patents that members of the firm had prosecuted on behalf of the other side.  Here are two more patent infringement cases where the court did not find a substantial relationship, Talecris Biotherapeutics, Inc. v. Baxter Int’l Inc., 491 F. Supp. 2d 510 (D. Del. 2007), and Arctic Cat, Inc. v. Polaris Industries Inc., 2004 U.S. Dist. LEXIS 25463 (D. Minn. Dec. 20, 2004).

        Patent; Third-Party Action. Auto-Dimensions LLC v. Dassault Systs. Solidworks Corp., 2014 U.S. Dist. LEXIS 27096 (D. Mass. March 4, 2014). Plaintiff sued Defendant for patent infringement. Defendant brought a third-party action against Third Party for indemnification. Third Party moved to disqualify Plaintiff’s law firm (“Law Firm”) because Law Firm had done some discovery work for Third Party in connection with this matter. In this opinion the court denied the motion. The court noted that there were no “direct claims” between Plaintiff and Third Party. Thus, they weren’t “materially adverse” for purposes of Rule 1.9(a).

        Interesting Variation on Patent Theme.  Patriot Universal Holding, LLC v. McConnell, 2012 U.S. Dist. LEXIS 162628 (E.D. Wis. Nov. 14, 2012).  Above we talk about a lawyer's attacking her own work in a subsequent proceeding -- including in patent situations.  This is such a case, but the court considered only whether it had jurisdiction in ruling on a motion to remand the case to state court after it had been removed.  Lawyer had prosecuted certain patents.  At some point Lawyer changed firms.  Lawyer's original patent client assigned the patents to Assignee.  At his new firm Lawyer brought a reexamination proceeding for two new clients, claiming the patents were invalid.  That led to this malpractice action brought by Assignee.  In this opinion the court held that there were enough patent-related issues to confer federal jurisdiction.

        Trademark Variation. In Annie Sloan Interiors, Ltd. v. Kappel, 2019 WL 2492303 (E.D. La. June 14, 2019), the court said only that an allegation that a lawyer attacked a trademark he had obtained implicated Rule 1.9 and stated a cause of action against the lawyer in a suit for breach of fiduciary duty.

        Purchase of Patent not Substantially Related to Infringement of Same Patent.  Reliant Pharmaceuticals, Inc. v. Par Pharmaceutical, Inc., 2008 U.S. Dist. LEXIS 33461 (D. Del. April 23, 2008). 

        Real Estate Litigation.   Henery v. 9th St. Apt., L.L.C., 2001 Neb. App. LEXIS 117 (Neb. App. 2001).  Sherrets represented Cutler in the purchase of a downtown Omaha lot.  Sherrets now represents Henery in connection with a lot that abuts Cutler's lot.  Henery claims that underground footings for his building extend onto Cutler's lot, and he seeks to have Cutler enjoined from developing his property in a way to jeopardize Henery's building.  Cutler moved to disqualify Sherrets.  The Court of Appeals affirmed the trial court's denial of the disqualification.  The court held that the two matters were not substantially related because Sherrets was not aware of the footings when he represented Cutler in purchasing his lot, and the "encroaching footings" simply played no role in that transaction.  For a similar analysis, see R.I. Op. 2001-08 (November 8, 2001).  A lawyer assisted a client in connection with developing Parcel A two years ago.  Now another client wants the lawyer to assist it in developing Parcel B, which adjoins Parcel A.  The opinion  says that the second representation does not necessarily violate the "substantial relationship" test of Rhode Island Rule 1.9.

        Suit for Trespass and Quiet Title not Substantially Related to Earlier Suit to Establish Ownership of the Same Property.  Adams Creek Associates v. Davis, 2007 N.C. App. LEXIS 2302 (N.C. App. Nov. 6, 2007).  To a similar effect, and, again, referring to the same piece of property, Center Associates, L.P. v. Superior Court, 2008 Cal. App. LEXIS 1867 (Cal. App. Nov. 4, 2008); Quicken Loans v. Jolly, 2008 U.S. Dist. LEXIS 48266 (E.D. Mich. June 24, 2008, Belous v. Bartlett, 2008 Wash. App. LEXIS 2447(Wash. App. Oct. 14, 2008), and Hana Bank v. South Pac. Petro. Corp., 2010 U.S. Dist. LEXIS 84384 (D. Guam Aug. 13, 2010)

        Birth Injury Cases.  Vincent v. Essent Healthcare of Conn., 465 F. Supp. 2d 142 (D. Conn. 2006) .

        Malpractice.  In Damron v. Herzog, 67 F.3d 211 (9th Cir. 1995), the court held that taking on a substantially related matter against a former client creates a malpractice cause of action against the lawyer.

        Lawyer Fee Auditor Attempts to Oppose Former Audit Client.  Ehrich v. Binghamton City School District, 210 F.R.D. 17 (N.D.N.Y. 2002), is unique.  A lawyer had a side business conducting audits of legal fees.  He did this for the defendant school district.  After he ceased doing this for the school district, he attempted to handle a case adverse to the district.  The court disqualified him because he had audited the legal fees for this very case.

        City as Former Client; Changed Administrations.  Valdez v. Pabey, 2005 U.S. Dist. LEXIS 38311 (N.D. Ind. Dec. 27, 2005).  Law firm represented city for many years.  When mayors changed, the law firm was out.  Law firm then attempted to represent plaintiffs against the city.  The court said that the new administration would have a different approach to issues.  Therefore, it was unlikely that the law firm would have learned anything while representing the city that would be prejudicial to the city in this case.

        Suit for Fees not Substantially Related to Underlying Action.  In Lankler Siffert & Wohl, LLP v. Rossi, 287 F. Supp. 2d 398 (S.D.N.Y. 2003), aff’d. 2005 U.S. App. LEXIS 5471 (2d Cir. April 4, 2005), the plaintiff law firm (“LSW”) represented Rossi in a criminal case.  LSW used several consulting firms in the case.  When Rossi failed to pay LSW or the consulting firms, LSW filed a collection action on its own behalf and on behalf of the consultants.  Rossi moved to disqualify LSW from representing the consulting firms.  The court denied the motion, holding that the matters were not substantially related.  For another similar holding in a case arising out of the same criminal case, see FTI Consulting, Inc. v. Rossi, 2004 U.S. Dist. LEXIS 2860 (S.D.N.Y. Feb. 25, 2004).  Consistent with Lankler are: Gross Belsky Alonso LLP v. Edelson, 2009 U.S. Dist. LEXIS 49260 (N.D. Cal. May 27, 2009); Exact Software N.A., Inc. v. Infocon, Inc., 2008 WL 552625 (N.D. Ohio 2008); and Trope v. Katz, 11 Cal. 4th 274 (1995).

        Good Discussion of Test in New York.  Hickman v. Burlington Bio-Medical Corp., 371 F. Supp. 2d 225 (E.D.N.Y. May 17, 2005).

        S.C. Op. 05-05 (February 2005) holds that a lawyer who represented the purchaser of home cannot later represent the homeowners’ association in attaching a lien to the former client’s home.

        Court Construes "Personally and Substantially" Test in Rule 1.11(a) (Former Government Lawyer Rule).  Franklin v. Clark, 454 F. Supp. 2d 356 (D. Md. 2006).

        Lawyer Had Never Handled Hearing Loss Cases for His Former Client.  Best v. BNSF Ry. Co., 2008 U.S. Dist. LEXIS 5640 (Jan. 10, 2008).

        Substantial Relationship and Sewer Service.  Shawnee Associates, L.P. v. Village of Shawnee Hills, 2008 Ohio App. LEXIS 391 (Ohio App. Feb. 4, 2008).

        Follow the Assets.  Hoelscher v. Baggett, 2008 U.S. Dist. LEXIS 30713 (W.D. La. April 15, 2008).  Prior to this action Lawyer represented Plaintiff personally in the purchase of business assets (“the Assets“).  Plaintiff transferred the Assets into a company Plaintiff formed with a defendant in this case (Defendant).  In this case Plaintiff claims Defendant wrongfully transferred the Assets to yet another business.  Defendant’s law firm (“Law Firm”) in this case employs Lawyer.  For that reason Plaintiff moved to disqualify Law Firm.  In this opinion the district judge affirmed the magistrate judge’s denial of the motion.  The court held that the earlier representation was only superficially related to this case. 

        D.C. Op. 343 (Feb. 2008).  This opinion discusses the extent to which a precisely defined and limited engagement with Client No. 1 can save a lawyer from disqualification in a later representation against Client No. 1 on behalf of Client No. 2.

        Niemi v. Girl Scouts of Minn., 2009 Minn. App. LEXIS 129 (Minn. App. July 14, 2009).  In this case Plaintiff sued Girl Scouts for employment discrimination.  Lawyer represents Girl Scouts.  Twenty-five years prior to this case Lawyer had represented Plaintiff in an employment discrimination case against another employer.  Plaintiff moved to disqualify Lawyer in this case, and the trial court granted the motion.  In this opinion the appellate court reversed.  The opinion contains an excellent discussion of the role of obsolete information in a case that is otherwise "substantially related" to the earlier matter.

What is “Materially Adverse”?

        Special Note to Readers: This opinion, dated February 10, 2021, purports to cover all the ground that we intended below. It may be definitive and preclude the following material. We'll see. ABA Op. 497 (Feb. 10, 2021). Both Model Rule 1.9, relating to former client conflicts, and Model Rule 1.18(c), relating to conflicts with prospective clients, contain the expression "materially adverse." The ABA Standing Committee on Ethics and Professional Responsibility has issued its Formal Opinion 497, dated February 10, 2021, attempting to define "materially adverse" for purposes of understanding those rules. The legislative history of those rules appears to be quite thorough. While there have been few cases directly on point, the opinion appears to have captured the important ones. We are tempted to declare that the opinion is the final word on the matter, but will await comments by others.

        Freivogel Material Preceding February 10, 2021 and ABA Op. 479.

        For a lawyer to run afoul of Model Rule 1.9(a), the new matter must be “materially adverse” to the former client.  Obviously, taking on a litigation matter against the former client is being materially adverse.  But, what about taking on a new matter against a third party (not against the former client), the result of which, if you are successful, will somehow harm the former client.

        There is not much authority on what is “materially adverse.”  Before the changes to the Model Rules in 2002-2003, Comment [1] to Rule 1.9 contained this sentence:

The principles in Rule 1.7 determine whether the interests of the present and former clients are adverse.

        Rule 1.7 uses the term “directly adverse.”  One might conclude from the quoted sentence that “materially adverse” is the same as “directly adverse.”  In ABA Op. 99-415 (1999) (dealing with former in-house lawyers being adverse to their former employers) the Committee seemed to conclude as much.  That was also the conclusion in Simpson Performance Products, Inc. v. Robert W. Horn, P.C., 92 P.3d 283 (Wyo. 2004), a rare and thoughtful opinion attempting to deal with the phrase “materially adverse” as used in Ruled 1.9.  What the court failed to note was the deletion of the quoted sentence from Comment [1] by the ABA House of Delegates a year or so prior to the court’s opinion.  Obviously, the Wyoming version of Comment [1] had not changed, and, according to the Wyoming court Web site, still has not changed.

        We attempted to find out from those close to the Ethics 2000 project why the sentence in question was deleted.  Our contacts could not recall.  The “legislative history” at the ABA Web site does not mention the change.  One academic, for whom we have great respect, and who also has no recollection, said as follows:

[M]y own view is that “directly adverse” [used in Model Rule 1.7] is a much stricter standard.  Keep in mind that “directly adverse” conflicts trigger an obligation not to take a position so far adverse to your own client that it would significantly undermine the client’s ability to trust you, regardless what effect it might have on the matter in which you are representing the client.  “Materially adverse” under 1.9 means that there is a significant risk that the client information you have could be used in a manner that would harm that client.

We will adopt that distinction until a better one comes along.
        Pretty Good Example. Plotts v. Chester Cycles LLC, 2016 WL 614023 (D. Ariz. Feb. 16, 2016). Employee brought this Title VII case against Employer, a motorcycle dealer. Employer is a member of a vast corporate family, of which Chester Group is the ultimate parent. E.B. Chester (“E.B.”) owns a one-third interest in Chester Group. Law Firm represents Employee in this case . Lawyer, at Law Firm, represented E.B. in his 2011-1012 divorce case. Employer moved to disqualify Law Firm, even though E.B. himself is not a party. In this opinion the court granted the motion. During the divorce case E.B. gave financial and ownership information regarding Chester Group to Lawyer. Thus, the divorce case and this case are substantially related. The court further held that because a big judgment for Employee would financially harm E.B., Law Firm’s representation of Employee is materially adverse to E.B.. Last, the court was also concerned that Law Firm may have to cross-examine E.B. in this case, further adding to its conflict.       

        A number of cases have dealt with the “adversity” feature of Rule 1.9, but not with the care or precision of the Wyoming Supreme Court in Simpson Performance.  In some cases, the court does not even mention its own version Rule 1.9.  Other cases predate the Model Rules or have ethics rules without an analogue to Rule 1.9.  Yet, they manage to deal with the need for some sort of adversity for the rules on former clients to engage.  Here are the ones, of which we have knowledge: Admiral Ins. Co. v. Heath Holdings USA, Inc., 2005 U.S. Dist. LEXIS 16363 (N.D. Tex. Aug. 9, 2005); In re Jones & McClain, LLP, 271 B.R. 473 (W.D. Pa. 2001);  SIPA Protection Corp. v. R.D. Kushnir & Co., 246 B.R. 582 (N.D. Ill. 2000);  McPhearson v. Michaels Co., 117 Cal. Rptr. 2d 489 (Cal. App. 2002) (Cal. Rule 3-310(E) just says “adverse”); Fiddelman v. Redmon, 623 A.2d 1064 (Conn. App. 1993); Jerry Lipps, Inc. v. Postell, 229 S.E.2d 78 (Ga. App. 1976); In re Estate of James M. Ragen, Jr., 398 N.E.2d 198 (Ill. App. 1979); Adoption of Erica, 686 N.E.2d 967 (Mass. 1997); In re Epic Holdings, Inc., 985 S.W.2d 41 (Tex. 1998) (Texas’ version of Rule 1.9 just says “adverse”); State of West Virginia v. Hamilton, 430 S.E.2d 569 (W. Va. 1993).

"Accommodation Client."

        This is an expression that appears in a series of cases where the courts did not believe that slavish adherence to the substantial relationship test did real justice.  They had several aspects in common.  Each involved a multiple representation, in which one client was a substantial, long-standing client, the "primary client," and the other was temporary, the "accommodation client."  The nature of the cases was such that the accommodation client would have no expectation that anything the lawyer learned from the accommodation client would not be shared with the primary client.  As noted above, the expectation of confidentiality is usually the rationale for application of the substantial relationship test. 

        This concept is discussed in the Restatement at § 132, Comment i.  The Reporter's Note to cmt. i lists the following cases, in which the courts applied some form of the "accommodation client" theory: Allegaert v. Perot, 565 F.2d 246 (2d Dir. 1977); American Special Risk Ins. Co. v. Delta America Ins. Co., 634 F. Supp. 112 (S.D.N.Y. 1986); E.B. Marks Music. Inc., 558 F. Supp. 57 (S.D.N.Y. 1983); and Anderson v. Pryor, 537 F. Supp. 890 (W.D. Mo. 1982).  One case that post-dates the Restatement, in which the court refused to apply the "accommodation client" distinction was Universal Studios, Inc. v. Reimerdes, 98 F. Supp. 2d 449 (S.D.N.Y. 2000).  It distinguishes Allegaert, but does not mention the other cases noted above.  Another recent case that adopts the Allegaert approach and cites the Restatement is In re Rite Aid Corp. Securities Litigation v. Grass, 139 F. Supp. 2d 649 (E.D. Pa. 2001).  

         Other cases following the Allegaert approach are Kapnis v. Independent Party State Committee of the State of N.Y., 2010 U.S. Dist. LEXIS 121603 (E.D.N.Y. Nov. 1, 2010); Pacheco Ross Architects, P.C. v. Mitchell Associates Architects, 2009 U.S. Dist. LEXIS 45294 (N.D.N.Y. May 29, 2009); Simply Fit of N. Amer. v. Poyner, 2008 U.S. Dist. LEXIS 74457 (E.D.N.Y. Sept. 26, 2008); Travelers Cas. & Sur. Co. of Amer. V. Claude E. Atkins Enterprises, Inc., 2006 U.S. Dist. LEXIS 93189 (E.D. Cal. Dec. 11, 2006); Ello v. Singh, 2006 U.S. Dist. LEXIS 55542 (S.D.N.Y. Aug. 7, 2006); Frontline Communications Int’l., Inc. v. Sprint Communications Co. L.P., 232 F. Supp. 2d 281 (S.D.N.Y. 2002); Skidmore v Warburg Dillon Read LLC, 2001 U.S. Dist. LEXIS 6101 (S.D.N.Y. 2001); Host Marriott Corp. v. Fast Food Operators, 891 F. Supp. 1002 (D.N.J. 1995);  Bagdan v. Beck, 140 F.R.D. 660 (D.N.J. 1991); Kempner v. Oppenheimer & Co., 662 F. Supp. 1271 (S.D.N.Y. 1987); In re Zimmerman, 81 B.R. 296 (E.D. Pa. 1987), Rymal v. Baergen, 686 N.W.2d 241 (Mich. App. 2004) (although not mentioning Allegaert or the "accommodation client" rubric; plus possession of confidences from "former client" might have disqualified the law firm); and Meyers v. Lipman, 726 N.Y.S.2d 547 (N.Y. App. June 19, 2001).  A similar case that preceded Allegaert by one year is Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876 (E.D. Pa. 1976).

        The following cases either explicitly, or by implication, reject the Allegaert approach: Securities Investor Protection Corp. v. R.D. Kushnir & Co., 246 D.R. 582 (N.D. Ill. 2000); Koch v. Koch Ind., 798 F. Supp. 1525 (D. Kan. 1992); and Casco Northern Bank v. JBI Associates Ltd., 667 A.2d 856 (Me. 1995).

        G. D. Mathews & Sons Corp. v. MSN Corp., 763 N.E.2d 93 (Mass. App. 2002).  The disqualified law firm tried to make an accommodation client argument, but did so only in a footnote in its brief.  The court was unimpressed and rejected the argument without discussing it.

        Parties Reversed.  In Ucar Int'l. Inc. v. Union Carbide Corp., 2002 U.S. Dist. LEXIS 21766 (S.D.N.Y. November 8, 2002), a lawyer for the "principal" client joined the firm now representing the "accommodation" client.  His new firm, in the face of a motion to disqualify, argued that the "principal" client would have had not expectation of confidentiality when the parties were aligned.  Not so, said the court, who disqualified the new law firm.

        Parties in Prior Case on Equal Footing.  Goldfarb v. Kuhl, Ct. of Common Pleas, Philadelphia County, 1st Jud. Dist. of Pa., No. 1825 (Oct. 24, 2005).  A family-owned business originally had three owners, A, B, and C.  They had a falling out, and, in a case prior to this case, C sued A and B.  Law firm X represented A and B.  That case settled with A and B buying out C.  Firm X had no further involvement with A.  A and B subsequently had a falling out, and A sued B (this case).  Firm X appeared for B.  A petitioned the court to enjoin X from representing B.  The court denied the petition, holding that, while this case is substantially related to the prior case, A had no expectation in the prior case that X would not share all A’s information with B.  This is the rationale for the "accommodation client" cases, except that here, A and B appeared to have been on equal footing in the earlier case insofar as X's representation of them was concerned. 

        Law Review.  For an excellent and concise discussion of some of these cases, see Douglas R. Richmond, Accommodation Clients, 35 Akron L. Rev. 59 (2001).


        We are borrowing terminology used by Professor Charles Wolfram in his outstanding article cited above.  Those familiar with materials published by Attorneys' Liability Assurance Society have seen the phrase "unique insights" to describe the same concept.  The issue is when does a lawyer learn enough about the former client's thought processes and procedures that the new representation may be deemed "substantially related" to the former one. 

        Outside Counsel - Not Disqualified.  In the following cases the courts held that knowing about how a former client thinks or approaches litigation is not enough to fall within the substantial relationship test.  ; Watkins v. Trans Union, 2017 WL 3599780 (7th Cir. Aug. 22, 2017) (2-1; majority and minority good examples of different approaches to playbook); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir. 1981); (posted October 2, 2012); Ancient Brands, LLC v. Planet Stuff, LLC, 2018 WL 5885502 (E.D. Mich. Nov. 9, 2018) (disclosing "business model" disqualifying); Olajide v. Palisades Collection, LLC, 2016 WL 1448859 (S.D.N.Y. April 12, 2016) ("general knowledge" of former client not enough); Sonos, Inc. v. D&M Holdings Inc., 2015 WL 5277194 (D. Del. Sept. 9, 2015) (knowledge of general litigation strategy not disqualifying); Giambrone v. Mertiplan Ins. Co., 2015 WL 4602869 (E.D.N.Y. July 30, 2015) (prior representation too brief and attenuated to qualify as "playbook"); Khani v. Ford Motor Co., 2013 Cal. App. LEXIS 320 (Cal. App. April 2, 2013) ("lemon law" cases); PCT Int'l Inc. v. Holland Elecs. LLC, 2013 U.S. Dist. LEXIS 31583 (D. Ariz. March 7, 2013); Sanchez v. American Family Mut. Ins. Co., 2012 U.S. Dist. LEXIS 140171 (D. Nev. Sept. 28, 2012) (applied Comment [3] to Rule 1.7 according to its terms); Employers Ins. Co. of Wausau v. Munich Reins. Am., Inc., 2011 U.S. Dist. LEXIS 52048 (S.D.N.Y. May 13, 2011) (court recognized playbook in some circumstances, but not in reinsurance arbitrations); Morgan Stanley & Co., Inc. v. Solomon, 2009 U.S. Dist. LEXIS 15799 (S.D. Fla. Feb. 19, 2009); Vincent v. Essent Healthcare of Conn., 465 F. Supp. 2d 142 (D. Conn. 2006) (in context of OB/GYN malpractice cases); Mardian Equip. Co. v. St. Paul Ins. Co., 2006 U.S. Dist. LEXIS 14517 (D. Ariz. March 28, 2006) (total rejection of playbook approach); Pepper v. Little Switzerland Holdings, Inc., 2005 U.S. Dist. LEXIS 14453 (D.V.I. July 6, 2005) (follows Brice; see below); Arctic Cat, Inc. v. Polaris Industries Inc., 2004 U.S. Dist. LEXIS 25463 (D. Minn. Dec. 20, 2004) (patent infringement case involving different technoloogy); S.D. Warren Co. v. Yale Industrial Products, Inc., 302 F. Supp. 2d 762 (W.D. Dist. Mich. 2004) (excellent analysis of concept in products liability context); Spinner v. City of New York, 2003 U.S. Dist. LEXIS 14854 (E.D.N.Y. August 27, 2003) (used to defend strip search cases, now suing); Secureinfo Corp. v. Bukstel, 2003 U.S. Dist. LEXIS 12189 (E.D. Pa. July 10, 2003) (same kinds of matters); Briggs v. Aldi, Inc., 218 F. Supp. 2d 1260 (D. Kan. 2002) (sex discrimination cases involving different stores in different cities and no central management); Hampton v. Daybrook Fisheries, Inc., 2001 U.S. Dist. LEXIS 19028 (E.D. La. 2001); Brice v. Hess Oil Virgin Islands Corp., 796 F. Supp. 193 (D.V.I. 1990); Int'l. Paper Co. v. Lloyd Manufacturing Co., Inc., 555 F. Supp. 125 (N.D. Ill. 1982); Westinghouse Elec. Corp. v. Rio Algom, Ltd., 448 F. Supp. 1284 (N.D. Ill. 1978), aff'd., 580 F.2d 1311, 1322 (7th Cir.), cert. denied, 439 U.S. 955 (1978); In re Chantilly Construction Corp., 39 B.R. 466 (E.D. Va. 1984); Amparano v. Asarco, Inc., 93 P.3d 1086 (Ariz. App. 2004); Ex parte Regions Bank, 914 So. 2d 843 (Ala. 2005); 2004 Ariz. App. LEXIS 83 (Ariz. App. June 16, 2004); Ins. Co. of the State of Pa. v. Nat. Fire Ins. Co. of Hartford, 2008 Cal. App. Unpub. LEXIS 10011 (Cal. App. Dec. 12, 2008) (“general” playbook information does not disqualify); Schapiro v. Morgan Creek Productions, Inc., 2001 Cal. App. LEXIS 3318 (Cal. App. December 13, 2001) (former labor work not substantially related to employment contract dispute); Harper v. Beacon Air, Inc., 2017 WL 838224 (Del. Super. Ct. March 2, 2017) (recognize playbook sparingly; not in this case); Freiburger v. J-U-B Engineers, Inc., 111 P.3d 100 (Ida. 2005); Doe v. Chand, 781 N.E.2d 340 (Ill. App. 2002); State ex rel. Wal-Mart Stores, Inc. v. Kortum, 559 N.W.2d 496 (Neb. 1997) ("routine slip and fall cases"); Reem Contracting Corp. v. Resnick Murray St. Associates, 843 N.Y.S.2d 3 (N.Y. App. 2007) (nothing confidential about enforcing construction liens); Bloom v. St. Paul Travelers Cos., Inc., 806 N.Y.S.2d 692 (N.Y. App. 2005);  (working on different insurance policies); In re Drake, 195 S.W.3d 232 (Tex. App. 2006); Houghton v. State of Utah, 962 P.2d 58 (Utah 1998) (Utah has unique version of MR 1.9(a) - "a substantially factually related matter"); Plein v. USAA Cas. Ins. Co., No. 97563-9 (Wash. May 21, 2020); State ex rel. Ogden Newspapers, Inc. v. Wilkes, 566 S.E.2d 560 (W. Va. 2002) (nine years had elapsed since prior representation, and the law had changed greatly).  

       Outside Counsel - Disqualified.  In the following cases lawyers or law firms were disqualified because of the insights they had gained while working for a former client.  The courts focus on concepts such as "attitudes," "litigation philosophy," "procedures," "strategies," "policies," and the like.  Frequently, the former relationship had been lengthy.  Moreover, the courts emphasized the nature of confidential information the lawyer had gathered.  The courts deal with confidences in different ways.  Many say that there is a presumption that the lawyer has learned confidences from the former client or has shared former client confidences with his or her entire law firm.  Some say either or both presumptions are irrebuttable.  Some apply the appearance of impropriety standard, which is no longer part of the ethics rules of all but a handful of states.  In short, while this list is a starting point, there is no substitute for doing your own research and reading each case.  In re Riles, 2000 U.S. App. LEXIS 20186 (Fed. Cir. 2000); In re: Corrugated Container Antitrust Lit., 659 F.2d 1341 (5th Cir. 1981) (appearance of impropriety); Nasdaq, Inc. v. Miami Int'l Holdings, Inc., No. 17-6664-BRM-DEA, 2018 WL 6171819 (D.N.J. Nov. 26, 2018) (same patents); Micrografx, LLC v. Samsung Telecomms. Am., LLC, No. 3:13-CV-3599-N (N.D. Tex. March 7, 2014) (matters involved technology: smartphone, tablets, and graphic libraries); Cuevas v. Joint Benefit Trust, 2013 U.S. Dist. 12450 (N.D. Cal. Aug. 29, 2013) (discrimination cases); Childress v. Trans Union, LLC, 2013 U.S. Dist. LEXIS 61360 (S.D. Ind. April 30, 2013) (FCRA cases); Mathurin v. Sun Constructors, Inc., 2012 U.S. Dist. LEXIS 121190 (D.V.I. Aug. 27, 2012); De La Cruz v. V.I. Water & Power Auth., 2012 U.S. Dist. LEXIS 64404 (D.V.I. May 8, 2012) (different cases involved exposed power lines);  North Amer. Specialty Ins. Co. v. National Fire & Marine Ins. Co., 2011 U.S. Dist. LEXIS 101102 (D. Nev. Sept. 7, 2011); Commonwealth Title Ins. Co. v. St. Johns Bank & Trust Co., 2009 U.S. Dist. LEXIS 87151 (E.D. Mo. Sept. 22, 2009); Halladay & Mim Mack Inc. v. Trabuco Capital Partners Inc., 2009 U.S. Dist. LEXIS 97040 (C.D. Cal. Oct. 5, 2009); Murphy v. Simmons, 2008 U.S. Dist. LEXIS 594 (D.N.J. Jan. 3, 2008) (thorough analysis of playbook); Ali v. American Seafoods Co., LLC, 2006 U.S. Dist. LEXIS 29880 (W.D. Wash. May 15, 2006); In re North Am. Deed Co., Inc. v. Joseph, 334 B.R. 443 (D. Nev. 2005)  Panebianco v. First Unum Life Ins. Co., 2005 U.S. Dist. LEXIS 7314 (S.D.N.Y. April 27, 2005) (same players as in Lott and Battagliola following); Lott v. Morgan Stanley Dean Witter & Co. Long-Term Disability Plan, 2004 U.S. Dist. LEXIS 25682 (S.D.N.Y. Dec. 23, 2004) (lawyer formerly defended long-term disability claims for carrier - cannot represent plaintiff against same carrier in long-term disability claim); Battagliola v. Nat. Life Ins. Co., 2005 U.S. Dist. LEXIS 650 (S.D.N.Y. Jan. 19, 2005) (same players as in Lott; court said screen would work); Edwards v. Gould Paper Corp., 2005 U.S. Dist. LEXIS 849 (E.D.N.Y. January 18, 2005) (very similar to Lott, just above); Engineered Products Co. v. Donaldson Co., 290 F. Supp. 2d 974 (N.D. Iowa 2003) (appearance of impropriety and presumption that lawyer learned confidences "not rebuttable."); Volkswagen Aktiengesellschaft v. Novelty, Inc., 247 F. Supp. 2d 1076 (S.D. Ind. 2003) (trademark infringement work for VW, then against VW); Safe-T-Products, Inc. v. Learning Resources, Inc., 2002 U.S. Dist. LEXIS 20540 (N.D. Ill. October 24, 2002); Mitchell v. Metropolitan Life Ins. Co., 2002 U.S. Dist. LEXIS 4675 (S.D.N.Y. 2002); Colorpix Sys. of Am. v. Broan Mfg. Co., 131 F. Supp. 2d 331 (D. Conn. 2001) (same kinds of cases and working with same in-house lawyer); Superguide Corp. v. DirecTV Enterprises Inc., 141 F. Supp. 2d 616 (W.D.N.C. 2001); Smith & Nephew. Inc. v. Ethicon, Inc., 98 F. supp. 2d 106 (D. Mass. 2000); Loomis v. Consol. Stores Corp., 2000 U.S. Dist. LEXIS 12391 (S.D.N.Y. 2000); Est. of Jones v. Beverly Health and Rehabilitation Services, Inc., 68 F. Supp. 2d 1304 (N.D. Fla. 1999); Cardona v. General Motors Corp., 942 F. Supp. 968 (D.N.J. 1996); Hammond v. Goodyear Tire & Rubber Co., 933 F. Supp. 197 (N.D.N.Y. 1996); Contant v. Kawasaki Motors Corp., 826 F. Supp. 427 (M.D. Fla. 1993); Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, LLP, 81 Cal. Rptr. 2d 425 (Cal. App. 1999); Persichette v. Owners Ins. Co., No. 19SA188 (Col. May 4, 2020) (insurance bad faith cases); Franco v. Toyota Motor Sales, Inc., 1995 Conn. Super. LEXIS 3509 (Conn. Super. 1995); Philip Morris USA Inc. v. Caro, No. 4D16-2416 (Fla. App. Dec. 7, 2016); Canta v. Philip Morris USA, Inc., No. 3D17-1959 (Fla. App. Dec. 27, 2017) (lawyer's departure from second firm does not remove imputation); Crawford W. Long Mem. Hosp. v. Yerby, 373 S.E.2d 749 (Ga. 1988); Chrispens v. Coastal Refining & Marketing, Inc., 897 P.2d 104 (Kan. 1995); Mid-States Building Services, Inc, vs. Richfield Senior Housing, Inc., 2002 Minn. App. LEXIS 1066 (Minn. App. September 17, 2002); In re Carey, 89 S.W.3d 477 (Mo. 2002); Gray v. Commercial Union Ins. Co., 468 A.2d 721 (N.J. App. 1983); Clark v. A.O. Smith Water Products, 2010 N.Y. Misc. LEXIS 5411 (N.Y. Sup. Ct. Nov. 8, 2010); Majestic Steel Service, Inc. v. Disabato, 1999 Ohio App. LEXIS 4919 (Ohio App. 1999); Texaco, Inc. v. Garcia, 891 S.W.2d 255 (Tex. 1995); Plein v. USAA Cas. Ins. Co., 2019 WL 3407107 (Wash. App. July 29, 2019); Skjerpen v. Johnson, 2007 BCSC 1290 (CanLII) (B.C. S. Ct. Aug. 8, 2007).

        In In re: A&T Paramus Co., Inc., 1999 Bankr. LEXIS 1841 (D.N.J. 1999), the court recognized that knowledge of "litigation strategy, methods and procedures for defending claims" can fall within the substantial relationship test, but found that the lawyer had not gained enough information to warrant disqualification.

        Jessen v. Hartford Cas. Ins. Co., 3 Cal. Rptr. 3d 877 (Cal. App. 2003).  James Wilkins is attempting to represent the plaintiff in a coverage action against Hartford.  Until 1992 Wilkins, at another firm, had represented Hartford in coverage disputes in approximately 20 different matters.  Hartford moved to disqualify Wilkins in this case.  The trial judge denied the motion because similar motions by Hartford against Wilkins had been denied in two federal district court cases.  Thus, the trial court held, Hartford was estopped from making the motion in this case.  The appellate court reversed, for reasons, it said, contained in an “unpublished portion” of its opinion.  (The portion is indeed unpublished; it does not appear at all.)  The appellate court remanded the case to the trial court with directions “to rehear the motion and, in doing so, to apply the substantial relationship test.”  For some reason, not at all clear from the opinion, the appellate court felt compelled to describe at great length the nature of the substantial relationship test in California.  For another case involving Wilkins and his disqualification, see Farris v. Fireman’s Fund Ins. Co., 14 Cal. Rptr. 3d 618 (Cal. App. 2004).

        More on Jessen.  Fremont Indem. Co. v. Fremont Gen. Corp., 49 Cal. Rptr. 3d 82 (Cal. App. 2006).  Extensive discussion of the substantial relationship test and applicability of Jessen v. Hartford Cas. Ins. Co., 3 Cal. Rptr. 3d 877 (Cal. App. 2003).

        Lawyer/Testifying Expert Treated Like Lawyer, and Playbook Analysis Applied.  Brand v. 20th Century Ins. Co., 21 Cal. Rptr. 3d 380 (Cal. App. 2004).  Helen Brand sued her insurance company in a coverage dispute.  She hired lawyer Barry Zalma as an expert witness on insurance coverage issues.  Twelve years prior Zalma had represented the insurance company on coverage and related matters.  The insurance company moved to disqualify Zalma as Brand’s expert witness.  The trial court denied the motion.  In this opinion the appellate court reversed, finding a substantial relationship between what Zalma had done for the insurance company and the issues in this case.

        Corpac v. Rubin & Rothman, LLC, 2013 U.S. Dist. LEXIS 110408 (E.D.N.Y. Aug. 1, 2013).  In this FDCPA class action Lawyer P represents Plaintiffs.  Lawyer D represents Defendant.  About one year into this case Lawyer D brought in Lawyer X as co-counsel.  Because Lawyer X had earlier been co-counsel with Lawyer P in "twenty-three other similar cases," the court, in January 2013, disqualified Lawyer X in this case.  In this opinion the court denied Lawyer X's motion for reconsideration.  The opinion is mostly about reconsideration principles and does not articulate the basis for disqualification in the first instance.  This is not the classic Rule 1.9/playbook case, because Lawyer X was not, in this case, opposing a former client.

        All-Ways Forwarding Int'l Inc. v. IApparel, LLC, No. 650413/2020 (N.Y. Sup. Ct. Oct. 14, 2020). Plaintiff is suing Defendants for breach of contract. Defendants moved to disqualify Plaintiff's lawyer ("Lawyer") because Lawyer had earlier represented one of Defendants in an acquisition matter. In this opinion the court granted the motion. The court noted that Lawyer would have had "access to confidential information about how defendants are structured, operate and their finances." That information is relevant to this case, which involves "fraud claims" and "corporate veil theories."

        Former In-House Lawyers - ABA Op. 99-415 (1999).  This opinion says that the mere fact a lawyer was in a company's law department does not mean that the company was a former client for all matters that were pending when the lawyer was there.  Nor, does the fact that the lawyer had overall supervisory responsibility over lawyers who were representing the company mean that the company is a former client.  If the lawyer was involved to the extent that the company would be deemed a client on that matter, the lawyer can later cure any conflict with consent of the company under Rule 1.7(a).  If such a consent requires the lawyer to maintain confidences that relate to the new representation, the lawyer will also have to consider obtaining a Rule 1.7(b) consent from the new client.  The opinion also reminds readers that the lawyer may have obtained confidences at the company requiring the lawyer's (and the lawyer's new law firm) to be disqualified under Rule 1.9(b).  (As to the ability to avoid the firm's disqualification with a screen, see the section entitled, "Changing Firms - Lawyers and Non-Lawyers.")  The following state ethics opinions are in accord with ABA Op. 99-415: Ariz. Op. 94-06 (1994); N.J. Op. 654 (1991); and Va. Op. 1399 (1991).  But, see Mich. Op. RI-35 (1989).

        Former In-House Lawyers Disqualified.   NCK Org. Ltd. v. Bregman, 542 F.2d 128 (2d Cir. 1976); Chugach Elec. Assoc. v. United States Dist. Ct., 370 F.2d 441 (9th Cir. 1966); Hulzebos v. City of Sioux Falls, 2013 U.S. Dist. LEXIS 134085 (D.S.D. Sept. 19, 2013); Barker v. Professional Educators of Tenn., 2012 U.S. Dist. LEXIS 72320 (M.D. Tenn. May 23, 2012); Carreno v. City of Newark, 2011 U.S. Dist. LEXIS 136590 (D.N.J. Nov. 29, 2011); Henry v. Delaware River Joint Toll Bridge Commission, 2001 U.S. Dist. LEXIS 13462 (E.D. Pa. 2001); Hyman Cos., Inc. v. Brozost, 964 F. Supp. 168 (E.D. Pa. 1997); Prisco v. Westgate Entertainment, Inc., 799 F. Supp. 266 (D. Conn. 1992); Webb v. E.I. Du Pont De Nemours & Co., Inc., 811 F. Supp. 158 (D. Del. 1992); Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992); Stitz v. Bethlehem Steel Corp., 650 F. Supp. 914 (D. Md. 1987) (former in-house lawyer familiar with company personnel policies could not handle age discrimination case against company); Global Van Lines, Inc. v. Superior Court, 192 Cal. Rptr. 609 (Cal. App. 1983); Franzoni v. Hart Schaffner & Marx, 726 N.E.2d 719 (Ill. App. 2000).  Mich. Op. RI-35 (1989) (with company many years and formerly on board of directors).

        Former In-House Lawyer not Disqualified.  Caldwell-Gadson v. Thompson Multimedia, SA, 2000 U.S. Dist. LEXIS 16087 (S.D. Ind. October 11, 2000).  Plaintiff sued several companies for copyright infringement and plagiarism.  Her husband, who was formerly Senior Patent Counsel for one of the defendants now represents her.  The defendants moved to disqualify the husband under the substantial relationship test of Rule 1.9(a).  The court held that although the husband had worked on similar matters while with the defendant, he had not worked on that matter and denied the motion.  The court said:

This case is much like the example given in the comment to Rule 1.9: "[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."

To the same effect, see Citizens United Recip. Exch. v. Kurtz, 2013 N.J. Super. Unpub. LEXIS 1880 (N.J. App. Div. July 22, 2013); Jamaica Pub. Serv. Co. v. AIU Ins. Co, 684 N.Y.S.2d 459 (N.Y. 1998); McMyn v. The Mfrs. Life Ins. Co., 2015 BCSC 2205 (CanLII) (Sup. Ct. B.C. Nov. 11, 2015) (lawyer retained "only a general knowledge of claims practices and company personnel").  In Wisdom v. Philadelphia Housing Authority, 2003 U.S. Dist. LEXIS 2055 (E.D. Pa. Feb. 12, 2003), the issue was whether the plaintiff had sent her complaint letter on time, so the court was not impressed that the lawyer had gained knowledge of the former client's approach to handling complaints.  In Jordan v. Philadelphia Housing Authority, 337 F. Supp. 2d 666 (E.D. Pa. 2004), the former in-house lawyer got disqualified because he tried to use an earlier case he had handled for the Authority in this case.

        Ethics Opinions Finding no Conflict.  Ariz. Op. 94-06 (1994); Ind. Op. 3 (1991); N.J. Op. 654 (1991); Va. Op. 1399 (1991).

        Not Disqualified, but Unique Facts.  Walker v. State of Louisiana, 817 So. 2d 57 (La. May 15, 2002).  For ten years, until 1999, Daniel Vidrine worked in the “Road Hazard Section” of the Louisiana Attorney General’s Office.  When he went into private practice, he sent letters to “various Louisiana attorneys” saying that he was:

 . . . very informed in the inner operations of the Department of Transportation and Development as well as the location of valuable written documents which are essential in proving a case against the DOTD.

        Shortly after leaving the state, Vidrine took on a highway case for a plaintiff against the state.  The court denied the state's motion to disqualify Vidrine, because the state had not shown that Vidrine had any confidential information relating to this particular case.  The court said that merely handling the same type of case as that he had handled while with the state was not enough to disqualify him.       

        Vivid Articulation of Playbook Analysis.  Hurley v. Hurley, 923 A.2d 908 (Me. 2007) .  Wife hired Lawyer to represent her to recover her damages resulting from an automobile accident.  After that case concluded, Husband hired Lawyer to represent him in a divorce proceeding against Wife.  Wife moved to disqualify Lawyer, the trial court granted the motion, and in this opinion the supreme court affirmed.  In addition to noting that Lawyer learned about Wife’s health and earnings history, the court said:

[F]or over two years [Lawyer] observed [Wife’s] reaction to the numerous tribulations of the litigation process. [Lawyer] personally observed: [Wife’s] ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney. Disclosing knowledge of [Wife’s] strengths and weaknesses in these areas would be detrimental to her interests in another litigation, particularly in a contentious divorce action.

        Former Outside General Counsel Not Disqualified.  Guzewicz v. Eberle, 953 F. Supp. 108 (E.D. Pa. 1997).

        Nursing Home Neglect Cases Different from Product Liability Cases.  Health Care and Retirement Corp. of Amer., Inc. v Bradley, 961 So. 2d 1071 (Fla. App. 2007).  Lawyer had represented a nursing home chain for more than three years.  Many of those cases (none of them this case) involved pressure ulcers and falls, as does this case.  Lawyer has joined Law Firm, which has sued that same nursing home chain in a case (this case), which involves pressure ulcers and falls.  The trial court denied a motion to disqualify lawyer, and in this opinion the appellate court affirmed (denied cert.).  The court distinguished an earlier case in which a lawyer had defended a certain type of lawnmower and later sued the manufacturer involving the same type of lawnmower:

Here, [Lawyer] handled a "type of problem" for Manor Care-negligence cases involving patients who suffered from pressure ulcers or falls; the current case, filed after [Lawyer] left [his prior firm], is a "wholly distinct problem of that type." Rules Reg. Fla. Bar 4-1.9 cmt. (2006). Unlike two products liability cases involving the identical product, each negligence case turns on its own facts. Therefore, the work in this case does not involve [Lawyer] "attacking [the] work that [Lawyer] performed for the former client." Id. This lawsuit is not "substantially related" to the earlier cases within the meaning of Rule 4-1.9(a).

        Restatement.  See cmt. d(iii) to § 132, particularly the last paragraph of that comment.

        Treatise.  Hazard, Hodes, & Jarvis § 13.7.

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Former Client - Part II