Does a firm member’s earlier contract representation of a defendant create a conflict in a later negligence case against that defendant?

Plain-English summary

A member of the firm had represented D in a contract case. Another lawyer in the firm later represented P against D in a negligence case.

The answer directs the lawyer to determine whether any firm member acquired confidential information in the former representation that could harm D in the new case. It says Rule 4-1.6 confidentiality is broader than evidentiary privilege, suggests reviewing the old file, and discusses asking opposing counsel what information D believes triggers Rule 4-1.9(b).

Currency note

The official page notes that Rules 4-1.9 and 4-1.10 were amended effective July 1, 2007, and that this opinion applied the earlier rules. Treat its answer as historical context and verify current rules before relying on it.

Common questions

Q: Does the opinion say the earlier representation automatically creates a conflict?

A: No. It directs an inquiry into confidential information from that representation.

Q: Whose information matters to the inquiry?

A: Information obtained by any member of the firm through the prior representation.

Background and rules framework

The answer cites Rules 4-1.9(b) and 4-1.6. The source’s prefatory note says Rules 4-1.9 and 4-1.10 changed effective July 1, 2007.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.9(b)
• Rule 4-1.6
• Rule 4-1.10 (later source note)

See also

• Missouri Informal Op. 970092: Former Municipal Client
• Missouri Informal Op. 970100: Former Client Deed

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/970082/

Original opinion text

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

Reference Note: Rule 4–1.9, Duties to Former Clients, was amended effective July 1, 2007. Rule 4–1.10, Imputation of Conflicts of Interest: General Rule, was amended effective July 1, 2007. This opinion is based on Rules 4–1.9 and 4–1.10 in effect prior to July 1, 2007.

QUESTION: A member of Attorney´s firm formerly represented D in a contract action. Attorney is now representing P against D in a negligence case. Does Attorney have a conflict?
ANSWER: Under Rule 4–1.9(b), Attorney must determine whether any member of the firm obtained confidential information in the course of the previous representation that could be used to D´s detriment in the current case. Confidentiality under Rule 4–1.6 is much broader than the attorney-client privilege which is a statutory evidentiary rule. Any information which came into the possession of any member of the firm as a result of the previous representation would be included under the ambit of confidential information. Attorney should review the file. Attorney may also want to ask opposing counsel in the current matter whether D is asserting that Attorney has a conflict under Rule 4–1.9(b) and, if so, what confidential information from the previous representation D believes triggers the rule.