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Rule 1.9 (both in the Pennsylvania and Model Rules), reads: “(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 gives informed consent, confirmed in writing.”  As with every rule, the devil is in the details.  One of the more vexing questions facing attorneys as a result of this rule is what is a “substantially related” matter.  A number of bar associations and other commentators have offered opinions on various aspects of that question.  Last year, in its only “formal” opinion (Formal Opinion 2012-100), the Pennsylvania Bar Association weighed in on the issue.  Unfortunately, the opinion is of limited practical value, as it does not offer any “opinion.”  As the committee noted, “the phrase ‘substantially related’ is not self-explanatory, and has been the subject of inconsistent guidance and court decisions.”  The committee addresses some of the inconsistent opinions, and it notes the courts will generally not inquire into whether confidential information was actually acquired, but rather whether confidential information that “might have been” gained in a prior representation could be used to the detriment of the client in a subsequent representation.  The formal opinion notes there is no bright line test,  and the determination is generally very fact sensitive.

The formal opinion suggests lawyers confronted with these issues consult the Pennsylvania Ethics Handbook, “and other legal ethics resources.”  While not “substantially” helpful, the best practices take away from the formal opinion should be that a lawyer looking at potential representation against a former client should assume that if there is any reasonable basis for a person to believe that the lawyer is in possession of confidential information which may be adverse to the former client, the lawyer will be in a dangerous position if he or she accepts the representation.

-Josh J.T. Byrne, Esquire