When is former-client information generally known so a Missouri lawyer may use it to impeach the former client?

Plain-English summary

The lawyer wanted to use information from a former representation to impeach the former client as a witness in another client's matter.

Rule 4-1.9(c)(1) bars adverse use of former-client information unless the rules otherwise allow it or it has become generally known. Public-record status, open-court discussion, or availability through Case.net does not alone satisfy that exception.

The opinion requires broader recognition among members of the public in the community or in the former client's industry. If that standard is met, the lawyer may use the information to impeach the former client.

Rule 4-1.9(c)(2) separately continues to prohibit revelation of information relating to the former representation unless another rule permits or requires disclosure. Thus, generally known information may be used adversely but does not become freely revealable.

In practice

Under this opinion, availability and general recognition are different. The lawyer must also distinguish Rule 4-1.9(c)(1)'s use exception from paragraph (c)(2)'s continuing restriction on revelation.

Common questions

Q: Is information generally known because it is in a public court file?

A: No. Public-record status alone is insufficient.

Q: Does discussion in open court satisfy the standard?

A: No, not merely because a transcript or court record is publicly available.

Q: What recognition does the opinion require?

A: Recognition by the public in the community or in the former client's industry.

Q: May generally known information be revealed freely?

A: No. Rule 4-1.9(c)(2) continues to restrict revelation even when paragraph (c)(1) permits adverse use.

Background and rules framework

Rules 4-1.9(c)(1) and 4-1.6 govern adverse use and confidentiality. Rule 4-1.9(c)(2) separately governs revelation of former-client information.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.9(c)(1), 4-1.9(c)(2), and 4-1.6

Other opinions cited:

• Missouri Informal Advisory Opinions 2015-02, 960248, and 960170

See also

• Missouri Informal Op. 2022-04: Client Work as a Writing Sample
• Virginia Ethics Op. 1849: Lawyer Testifying About Client Debt

Source

• Landing page: Missouri Informal Opinion 2022-01

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Question: Attorney wishes to impeach Former Client who is a witness in another matter involving a current client and wants to know when information of a former client becomes generally known for purposes of Rule 4–1.9(c)(1)?

Answer: Rule 4–1.9(c)(1), in relevant part, prohibits a lawyer who has formerly represented a client in a matter from using “information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known.” In considering when information is generally known, it is important to note that Missouri Informal Advisory Opinion 2015–02 applies Rules 4–1.9(c) and 4–1.6 and states that “[e]ven if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed….” For the information of Former Client to be generally known pursuant to Rule 4–1.9(c)(1), it is the opinion of this office that it must be generally known outside just the public records, meaning it would be more recognizable by members of the public in the community, or in the industry of the former client, not simply because it was discussed in open court such that there are court records available through public repositories of such information, including Missouri Case.net. See also Missouri Informal Advisory Opinions 960248 and 960170. The generally known exception of Rule 4–1.9(c)(1) is restricted to use of the information of Former Client to Former Client’s disadvantage, but Rule 4–1.9(c)(2) still prohibits Attorney from revealing information relating to the representation of Former Client “except as these Rules would permit or require….” Therefore, Attorney may not use or reveal information of Former Client, but may use generally known information of Former Client for purposes of impeaching Former Client who is now a witness in another matter.