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Rule1.9. Duties to formerclients.

(a)  A licensed paralegal practitioner whohas formerly represented a client in a matter
shall not thereafter represent another person in the same or a substantially relatedmatter
in which that person?s interests are materially adverse to the interests of theformer client unless the former client gives
informed consent, confirmed in writing.

(b)  A licensed paralegal practitionershall not knowingly representa person in the same
or a
substantially relatedmatter in which a firm withwhich the licensed paralegal
practitioner formerly was associated had previously represented a
client

(b)(1)whose interests are materially adverse to that person;and

(b)(2)about whom the licensed paralegal practitioner had acquired informationprotected by Rules 1.6 and 1.9(c) thatis material to the matter, unless the former client gives informed consent, confirmed inwriting.

(c)  A licensed paralegal practitioner whohas formerly represented a client in a matter
or whose present or former firm hasformerly represented a client in a matter shall not thereafter:

(c)(1)use information relating to the representation to the disadvantage of theformer
client except as these Rules would permit or require with respect to a client,or when the information has become generally known; or

(c)(2)reveal information relating to the representationexcept as these Rules would permit or require.

 

Comment

[1]  After termination of a licensed paralegalpractitioner-client relationship, a licensed paralegal practitioner has certaincontinuing duties with respect to confidentiality and
conflicts of interest and thus may not represent another client except inconformity with
this Rule. Under this Rule, for example, a licensed paralegal practitioner whohas
represented multiple clients in a matter could not represent one of the clientsagainst the others in the same or a substantially related matter after adispute arose among the clients
in that matter, unless all affected clients give informed consent. See Comment[9]. Current
and former government licensed paralegal practitioners must comply with thisRule to the extent required by Rule 1.11.

[2]  Thescope of a "matter" for purposes of this Rule depends on the facts ofa particular situation or transaction. The licensed paralegal practitioner'sinvolvement in a matter can
also be a question of degree. When a licensed paralegal practitioner has beendirectly
involved in a specific transaction, subsequent representation of other clientswith
materially adverse interests in that transaction clearly is prohibited. On theother hand, a licensed paralegal practitioner who recurrently handled a type ofproblem for a former
client is not precluded from later representing another client in a factuallydistinct problem
of that type even though the subsequent representation involves a positionadverse to the
prior client. The underlying question is whether the licensed paralegal practitionerwas so involved in the matter that the subsequent representation can be justlyregarded as a
changing of sides in the matter in question.

[3]  Matters are "substantiallyrelated" for purposes of this Rule if they involve the same transaction orlegal dispute or if there otherwise is a substantial risk that confidential
factual information as would normally have been obtained in the priorrepresentation
would materially advance the client's position in the subsequent matter. Forexample, a licensed paralegal practitioner who has represented a businesspersonand learned
extensive private financial information about that person may not thenrepresent that
person's spouse in seeking a divorce. Information that has been disclosed tothe public or
to other parties adverse to the former client ordinarily will not bedisqualifying.
Information acquired in a prior representation may have been rendered obsoleteby the passage of time, a circumstance that may be relevant in determiningwhether two representations are substantially related. Aformer client is not required to reveal the confidential information learned bythe licensed paralegal practitioner in order to establish a substantial riskthat the licensed paralegal practitioner has confidential information to use inthe subsequent matter. A conclusion about the possession of such informationmay be based on the nature of the services the licensed paralegal practitionerprovided the former client and
information that would in ordinary practice be learned by a licensed paralegalpractitioner providing such services.

LicensedParalegal Practitioners Moving Between Firms

[4]  Whenlicensed paralegal practitioners have been associated within a firm but thenend their association, the question of whether a licensed paralegalpractitioner should undertake representation is more complicated. There areseveral competing considerations. First, the client previously represented bythe former firm must be reasonably assured that the principle of loyalty to theclient is not compromised. Second, the rule should not be so broadly cast as topreclude other persons from having reasonable choice of legal counsel. Third,the rule should not unreasonably hamper licensed paralegal practitioners fromforming new associations and taking on new clients after having left a previousassociation. If the concept of imputation were applied with unqualified rigor,the result would be radical curtailment of the opportunity of licensedparalegal practitioners to move fromone practice setting to another and of the opportunity of clients to changecounsel.

[5]  Paragraph (b) operates to disqualifythe licensed paralegal practitioner only when
the licensed paralegal practitioner involved has actual knowledge ofinformation protected
by Rules 1.6 and 1.9(c). Thus, if a licensed paralegal practitioner while withone firm
acquired no knowledge or information relating to a particular client of thefirm, and that
licensed paralegal practitioner later joined another firm, neither the licensedparalegal practitioner individually nor the second firm is disqualified fromrepresenting another
client in the same or a related matter even though the interests of the twoclients conflict.
See Rule 1.10(b) for the restrictions on a firm once a licensed paralegalpractitioner has terminated association with the firm.

[6]  Application of paragraph (b) dependson a situation's particular facts, aided by inferences, deductions or workingpresumptions that reasonably may be made about the
way in which licensed paralegal practitioners work together. A licensedparalegal
practitioner may have general access to files of all clients of a law firm andmay regularly participate in discussions of their affairs; it should beinferred that such a licensed
paralegal practitioner in fact is privy to all information about all the firm'sclients. In
contrast, another licensed paralegal practitioner may have access to the filesof only a
limited number of clients and participate in discussions of the affairs of noother clients; in
the absence of information to the contrary, it should be inferred that such alicensed
paralegal practitioner in fact is privy to information about the clientsactually served but
not those of other clients. In such an inquiry, the burden of proof should restupon the firm whose disqualification is sought.

[7]  Independent of the question ofdisqualification of a firm, a licensed paralegal
practitioner changing professional association has a continuing duty topreserve
confidentiality of information about a client formerly represented. See Rules1.6 and 1.9(c).

[8]  Paragraph (c) provides thatinformation acquired by the licensed paralegal
practitioner in the course of representing a client may not subsequently beused or
revealed by the licensed paralegal practitioner to the disadvantage of theclient. However,
the fact that a licensedparalegal practitioner has once serveda client does not precludethe licensed paralegal practitioner from using generally knowninformation about that client
when later representing another client.

[9]  Theprovisions of this Rule are for the protection of former clients and can be
waived if the client gives informed consent, which consent must be confirmed inwriting
under paragraphs (a) and (b). See Rule 1.0(b) and (f). With regard to theeffectiveness of an advance waiver, see Comment [22] to Rule 1.7. With regardto disqualification of a firm
with which a licensed paralegal practitioner is or was formerly associated, seeRule 1.10.

 

EffectiveJanuary 16, 2019