• Preamble
• Scope
• Chapter 1: Client-lawyer Relationship
  • Rule 1.0 Definitions
  • Rule 1.1 Competence
  • Rule 1.2 Scope of the Representation and the Allocation of Authority Between the Lawyer and Client
  • Rule 1.3 Diligence
  • Rule 1.4 Communication
  • Rule 1.5 Fees
  • Rule 1.6 Confidentiality
  • Rule 1.7 Conflict of Interest: General Rule
  • Rule 1.8 Conflict of Interest: Prohibited Transactions
  • Rule 1.9 Conflict of Interest: Former Client
  • Rule 1.10 Imputed Disqualification: General Rule
  • Rule 1.11 Successive Government and Private Employment
  • Rule 1.12 Former Judge or Arbitrator
  • Rule 1.13 Organizational Clients
  • Rule 1.14 Client under a Disability
  • Rule 1.15 Safekeeping Property
  • Rule 1.16 Declining and Terminating Representation
  • Rule 1.17 Sale of a Law Practice
• Chapter 2: The Lawyer as Counselor, Intermediary, and Dispute Resolution Neutral
  • Rule 2.1 Advisor
  • Rule 2.2 Lawyer Serving as Intermediary Between Clients
  • Rule 2.3 Evaluation for Use by Third Persons
  • Rule 2.4 Lawyer as Dispute Resolution Neutral
• Chapter 3: Advocate
  • Rule 3.1 Meritorious Claims and Contentions
  • Rule 3.2 Expediting Litigation
  • Rule 3.3 Candor Toward the Tribunal
  • Rule 3.4 Fairness to Opposing Party and Counsel
  • Rule 3.5 Impartiality and Decorum of the Tribunal
  • Rule 3.6 Trial Publicity
  • Rule 3.7 Lawyer as Witness
  • Rule 3.8 Special Responsibilities of a Prosecutor
  • Rule 3.9 Advocate in Non-adjudicative Proceedings
• Chapter 4: Transactions with Persons Other than Clients
  • Rule 4.1 Truthfulness and Candor in Statements to Others
  • Rule 4.2 Communication with Person Represented by Counsel
  • Rule 4.3 Dealing with Unrepresented Person
  • Rule 4.4 Respect for Rights of Third Persons
• Chapter 5: Law Firms, Legal Departments, and Legal Service Organizations
  • Rule 5.1 Responsibilities of a Partner, Managing Lawyer or Supervisory Lawyer
  • Rule 5.2 Responsibilities of a Subordinate Lawyer
  • Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
  • Rule 5.4 Professional Independence of a Lawyer
  • Rule 5.5 Unauthorized Practice of Law
  • Rule 5.6 Restrictions on Right to Practice
  • Rule 5.7 Responsibilities Regarding Law-related Services
• Chapter 6: Public Service
  • Rule 6.1 Pro Bono Publico Representation
  • Rule 6.2 Accepting Court Appointments
  • Rule 6.3 Membership in Legal Services Organization
  • Rule 6.4 Law Reform Activities Affecting Client Interests
• Chapter 7: Information about Legal Services
  • Rule 7.1 Communications Concerning a Lawyer's Services
  • Rule 7.2 Advertising and Other Communications Not Directed to Specifically Identified Recipients
  • Rule 7.3 Solicitation and Other Communications Directed to Specifically Identified Recipients
  • Rule 7.4 Communication of Fields of Practice
  • Rule 7.5 Firm Names and Letterheads
  • Rule 7.6 Intermediary Organizations
• Chapter 8: Maintaining the Integrity of the Profession
  • Rule 8.1 Bar Admission and Disciplinary Matters
  • Rule 8.2 Judicial and Legal Officials
  • Rule 8.3 Reporting Professional Misconduct
  • Rule 8.4 Misconduct
  • Rule 8.5 Disciplinary Authority; Choice of Law
• Transition Rules Governing Implementation of Tennessee Rules of Professional Conduct
•  

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client consents in writing after consultation.

(b) Unless the former client consents in writing after consultation, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) Unless the former client consents after consultation, a lawyer who has formerly represented a client in a matter, or whose present or former firm has formerly represented a client in a matter, shall not thereafter:

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

(2) reveal information relating to the representation of the former client except as these Rules otherwise permit or require with respect to a client.

[1] After termination of a client-lawyer relationship, a lawyer may not represent another client other than in conformity with this Rule, except that in the case of a government or former government lawyer, Rule 1.11 applies rather than paragraphs (a) and (b) of this Rule.

[2] The scope of a “matter” for purposes of this Rule will depend on the facts of a particular situation or transaction. The appropriateness of the subsequent representation will depend on the scope of the representation in the former matter, the scope of the proposed representation in the current matter, and its relationship to the former matter.

[3] The current matter is substantially related to the former matter if the current matter involves the work the lawyer performed for the former client or there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known.

Changing Sides

[4] Representing one side and then switching to represent the other in the same matter clearly implicates loyalty to the first client and protection of that client’s confidences. Similar considerations apply in non-litigation matters. For example, a lawyer negotiating a complex agreement on behalf of a seller could not withdraw and represent the buyer against the interests of the seller in the same transaction. Further, just as a lawyer may not represent both sides concurrently in the same case, see RPC 1.7(a), the lawyer also may not represent them consecutively.

[5] Beyond switching sides in the same matter, the concept of substantial relationship applies to later developments arising out of the original matter. A matter is substantially related if it involves the work the lawyer performed for the former client. For example, a lawyer may not on behalf of a later client attack the validity of a document that the lawyer drafted if doing so would materially and adversely affect the former client. Similarly, a lawyer may not represent a debtor in bankruptcy in seeking to set aside a security interest of a creditor that is embodied in a document that the lawyer previously drafted for the creditor.

Protecting Confidentiality

[6] The substantial relationship standard is employed most frequently to protect the confidential information of the former client. A subsequent matter is substantially related to an earlier matter if there is a substantial risk that the subsequent representation will involve the use of confidential information of the former client in violation of the restrictions these Rules and other law place on disclosure. Substantial risk exists where one could reasonably conclude that it would materially advance the client’s position in the subsequent matter to use confidential information obtained in the prior representation.

[7] Inquiries concerning the existence, exchange, and potential for use of such confidential information may themselves raise concerns and difficulties. A concern to protect a former client’s confidential information would be self-defeating if, in order to obtain its protection, the former client were required to reveal in a public proceeding the particular communication or other confidential information that could be used in the subsequent representation. On the other hand, closed or in camera proceedings may implicate issues of fairness to other parties. Further, the interests of subsequent clients also militate against extensive inquiry into the precise nature of the lawyer’s representation of the subsequent client and the nature of exchanges between them.

[8] The substantial relationship test attempts to avoid requiring actual disclosure of confidential information by focusing upon the general features of the matters involved and inferences as to the likelihood that confidences were imparted by the former client that could be used to adverse effect in the subsequent representation. The inquiry into the issues involved in the prior representation should be as specific as possible without thereby revealing the confidential client information itself or confidential information concerning the second client. Nevertheless, the subsequent client’s interest in selection of counsel of his or her choice requires that the lawyer be permitted, within appropriate limits, to defeat any presumption or inference concerning the lawyer’s receipt or exchange of confidential information.

[9] For example, a lawyer who has represented a business person and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors who sought to oppose rezoning of the property. However, the lawyer could defend a tenant of the completed shopping center in resisting eviction for non-payment of rent, as no substantial relationship exists between the two matters.

[10] Information that might be confidential for some purposes under these Rules (so that, for example, a lawyer would not be free to discuss it publicly) might nonetheless be so general, readily observable, or of so little value in the subsequent litigation that it should not by itself result in a substantial relationship being found. Thus, a lawyer may master a particular substantive area of the law while representing a client, but that does not preclude the lawyer from later representing another client adversely to the first in a matter involving the same legal issues, if the facts are not substantially related. A lawyer might also have learned a former client’s preferred approach to bargaining in settlement discussions or negotiating business points in a transaction, willingness or unwillingness to be deposed by an adversary, or financial ability to withstand extended litigation or contract negotiations. Only when such information will be directly in issue or of unusual value in the subsequent matter will it be independently relevant in assessing a substantial relationship.

Lawyers Moving Between Firms

[11] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.

[12] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, 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. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm.

[13] Application of paragraph (b) depends on a situation’s particular facts, aided by inferences, deductions, or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; if so, then it should be inferred that such a lawyer is privy to all information about all the firm’s clients. In contrast, 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. Under these circumstances, it should be inferred, in the absence of information to the contrary, that such a lawyer is privy to information about the clients actually served, but not those of other clients.

[14] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See RPCs 1.6 and 1.9(c).

Relation to Other Rules

[15] Except in situations governed by Rule 1.11, Rule 1.9 applies in all circumstances in which a lawyer has previously represented a client as an advocate, an advisor, an intermediary, or an author of a legal opinion to be rendered on behalf of a client for use by a third person. Except as provided in Rule 2.4, Rule 1.9 does not apply to parties being served by a lawyer as a dispute resolution neutral. If, however, the lawyer’s service as a neutral will be materially adverse to a former client and the dispute is substantially related to the former representation, the lawyer must afford the former client the protections of Rule 1.9

“Consents in Writing” See RPC 1.0(b)
“Consultation” See RPC 1.0(c)
“Firm” See RPC 1.0(e)
“Knowingly” and Known” See RPC 1.0(g)
“Material” and “Materially” See RPC 1.0(h)
“Substantially” See RPC 1.0(m)