15.03. Explaining the Difference Between Current and Former Client Conflicts

The remaining sections of this Topic will discuss the test for determining when a lawyer can go adverse to a former client.  Before tackling that issue, however, it may be worthwhile to stop and think about why there is a difference between the standard for going adverse to a current client and former client.

When we discussed current client conflicts, we noted that the reason the test is so strict – prohibiting a lawyer from going adverse to a current client even if the matter is completely unrelated to the lawyer’s representation – is because a client should not be in a position of seeing their lawyer acting adverse to their interest in any way.  When lawyers act adverse to the interests of a current client, there is a violation of the duty of loyalty to the client.

When the client is no longer a current client, however, the calculation shifts.  Now there are two interests to protect – first, the right of the person seeking to go adverse to the former client and their right to have counsel of their choice.  There is also the interest of the former client in having their confidential information protected.  Rule 1.9 strikes this balance by providing that a lawyer is only prohibited from going adverse to a former client in matters that are the “same” or “substantially related” to the prior matter.  In this way, any confidential information that the former client provided to the lawyer in the prior representation is protected, but the client does not have a permanent veto over a lawyer ever going against the former client in the future.