15.06.01. Lawyer going adverse to client of former firm [Rule 1.9(b)]

A lot of lawyers work in law firms, and those lawyers may want to move from one law firm to another.  However, historically there has been a limitation on lawyer mobility because of conflicts of interest.  When a lawyer leaves a law firm, all of the clients of the old law firm are considered “former clients” of the departing lawyer.  That is true even if the lawyer never worked on a case for a client.  It does not seem fair that a lawyer should be disqualified because of cases that she never worked on.  The rules recognize this issue, and address it in Rule 1.9(b).

The rule provides that, when a lawyer changes firms, the lawyer is only prohibited from going adverse to the clients from the old firm if:  (1) the interests of the clients in the new firm are “materially adverse” to a client in the old firm; and (2) the lawyer obtained confidential information about the former client that is material to the matter.  Therefore, a lawyer can change firms and not face disqualification related to those clients that the lawyer did not work for at the old firm.  If the lawyer did work on the case, the only way to get around disqualification is with client consent.  To determine whether the lawyer obtained confidential information at the old firm – you look to the facts of the particular law firm:

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 information about the clients actually served but not those of other clients.  In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.[1]

In November, 2015, Plaintiff Shilah Plants filed a lawsuit against her landlord:  Park Apartments challenging a clause in her lease.   Plants’ case was handled by a Legal Aid Office.  While Plants’ case was pending, Attorney Summer McCoy worked in the Legal Aid Office. In January, 2017, McCoy left Legal Aid and began working as a staff attorney for Park Apartments.  Thereafter, Plants (through her attorneys at Legal Aid) filed a motion to disqualify McCoy (and the entire Park Apartments legal staff).   Should the court grant the motion to disqualify?  [Park Apartments v. Plants, 545 S.W.3d 755 (Ark. 2018)]

No.  The court looked to Rule 1.9(b):

Under Rule 1.9(b), an attorney who has changed firms is prohibited from knowingly representing a person in the same or substantially related matter in which the attorney’s former firm had previously represented the opposing party only if she “acquired information protected . . . that is material to the matter.”  The Comments to Rule 1.9 further provide that “paragraph (b) [of Rule 1.9] operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected . . . .” Ark. R. Prof’l Conduct 1.9 cmt. [5] (emphasis added).  And “if a lawyer . . . acquired no knowledge or information relating to a particular client [of her first firm] . . . neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter evne though the interests of the two clients conflict” Id. (emphasis added).  Thus, Rule 1.9 does not include the requirement that the challenged attorney prove she did not have access to the client’s information.  Rather, the attorney must only rebut the presumption that she acquired actual knowledge of information protected. . . .

In this case, the Park successfully rebuted the presumption of actual knowledge.  Legal Aid divides its attorneys into workgroups or divisions.  McCoy was assigned to the economics division.  Plant’s case was assigned to the housing division, and McCoy did not participate in that division’s conferences.  She testified that she had no actual knowledge of Plant’s confidential information, never accessed Plant’s file, and never participated in Plant’s case.  Indeed, McCoy testified that she did not participate in any telephone conferences related to the housing workgroup.  McCoy rebutted the presumption that she had confidential knowledge, and Plants offered no evidence to contradict McCoy’s testimony.[2]

[1] ABA Rule 1.9, Comment [6].

[2] Parks Apartments at Fayetteville, LP v. Plants, 545 S.W.3d 755, 759 (Ark. 2018).