Speaker 1: I'm Drew Stevenson and this is a video for my professional responsibility class about ABA model rule 1.9. Here we're going to be focused on the comments to the rule. This is the third video in my series about rule 1.9. Rule 1.9 overall deals with conflicts of interest with former clients and here we're talking about clients of your previous firm after you change jobs. So let's say you go to a new firm after a few years and they represent a client who's the other party either in litigation or a transactional matter from a client that your previous firm has been representing. So let's dive in here and see what the comments have to say. I've highlighted the comments that I think you're likely to see show up in test questions. So paragraph B according to comment 5 operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by rules 1.6 and 1.9 C. So keep in mind, I know we haven't talked about the confidentiality rule yet in my course of 1.6, but you do understand based on what this says that you have to have actual knowledge. So if for whatever reason you have no knowledge at all about a client, you didn't have access to files, or you never had conversations with other lawyers at your old firm, then you don't have a conflict of interest even though they were a client of your previous firm. What are the implications of this? Well it means that if a lawyer acquired no knowledge or information relating to a particular client of the firm while working there 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 matter even though the interests of the two clients conflict. And so that's basically saying that there will be some cases where you don't have the knowledge, the information. We're very concerned about you having access to information at your new firm that would give your firm an unfair advantage or put the client of your previous firm at a disadvantage. But if you have no actual knowledge, then there's no concern there. Comment 6 says that application of paragraph B depends on the situation's particular facts, aided by inferences, deductions, or working presumptions that reasonably may be made about the way in which lawyers work together. So obviously we don't have science right now to scan your brain and find out for sure whether there's information in there and whether you actually remember it that's confidential. Instead the court that's deciding on a disciplinary, I'm sorry, disqualification motion or a disciplinary tribunal, if someone files a grievance against you, are going to have to make inferences about what probably happened given the nature of how firms operate and the fact that lawyers who work at the same firm often discuss their cases with each other and so forth. And then we're going to give a couple of examples, sort of comparing and contrasting different types of firm experiences. So on the one hand, a lawyer may have general access to the 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 is in fact privy to all the information about all the firm's clients. This is particularly true if you work at a small or mid-sized firm. If after law school you work for a firm where basically all the lawyers can fit in the conference room around a conference table together and they have meetings once a week or once a month to discuss their pending cases, then we're going to assume that everyone knows what is going on and hears the horror stories about other lawyers' clients and some of the confidential information and so forth. Now in the picture here I have paper, someone going through the old fashioned paper files. A lot of firms still have that. A lot of lawyers will have a folder or file related to a client of some printed out documents and original copies of things and so forth. But as you know, most modern firms have a lot of the information on a computer network and so the question is going to be, did you have access to all of the directories and files of the other lawyers on the network at your firm? So 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. So unless otherwise indicated, we're going to presume that a lawyer in fact is privy to information about the clients actually served but not to those of other clients. The burden of proof though is going to be on the firm whose disqualification is sought. So just to kind of put this in context or flesh this out a little bit, pay very careful attention to the burdens and presumptions that we have operating here. So let's say you work for a large national or international firm. It has offices in New York and Chicago and Houston and Los Angeles and maybe even Singapore or London. Well, very commonly if your firm is that big and you're working in the Houston or Dallas office, you probably don't even know some of the lawyers who work in the Chicago office or have confidential information about their clients. Some of them you might but not all of them. And some firms in order to limit the conflicts of interest that can arise will limit your access on the network through their IT department to the files that you're actually working on or the lawyers that you generally work with. You'll have access to their files and not others. So if you really didn't have even access on the network to the files related to certain clients and you weren't ever involved in discussions, then we will assume we'll have a presumption that you weren't privy to that. And so if you actually served a client, we're going to presume that you had access to all of their files and all of their information. If you worked on the case at all, otherwise we might not have that presumption. But remember the burden of proof is on the lawyer who's the target of the disqualification motion. So if somebody's trying to disqualify you, we're going to presume that you had access if your previous firm represented the party that's moving for disqualification. That you had access to confidential information and then the burden will be on you to convince the court that that's not how the firm operated because there were offices in different cities and they restricted access on the network to the files of lawyers and other offices and so forth. Now another thing to keep in mind is that independent of the question of a firm being disqualified, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. So we haven't in my course talked about the duty of confidentiality yet, but it applies even after the representation ends. And so this means when you change firms, you go work for a different firm, let's say hypothetically that you work for a firm that practices in a kind of different area of law and or a different jurisdiction, so they really never have matters where clients of your former firm are the other party. So maybe conflicts with former clients never arise. Even so, you're not supposed to divulge confidential or sensitive information about the clients of your previous firm to the lawyers at your new firm. You have a continuing duty of confidentiality independent of the question of whether a conflict of interest arises or someone in litigation, let's say, tries to disqualify your firm from the matter. And that concludes video 3 about ABA Model Rule 1.9. There's one more in this series that I hope you'll watch too.