The Firm's Old File: Former-Client Conflict and the Screening Question

Yes to the conflict; no to the screen.

• Rule 1.9(a): A lawyer who formerly represented a client may not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, absent informed consent confirmed in writing.
• Substantially related: The 2021 matter concerned Daniel's income, tax returns, and separate property - exactly what the divorce will litigate - and the very parcel now in the marital estate was the subject of the prior representation. Confidential information normally obtained in that engagement (net worth, characterization of assets) would materially advance Simone's position.
• Materially adverse: Simone's property-division and support claims are directly adverse to Daniel's.
• Imputation: The two 2021 lawyers are personally disqualified, and Rule 1.10(a)(1) imputes that disqualification to every lawyer in the firm, including Ruiz, who never touched the file.
• Why screening fails: Rule 1.10(a)(2)'s screening safe harbor applies only where the personally disqualified lawyer's former-client conflict arose at a prior firm - i.e., where the conflicted lawyer is the one who moved. Here the firm itself was the former counsel. No screen is available; the firm is out absent Daniel's informed consent.

It can, but only on facts that must be verified, not assumed.

• If Ruiz stays at the firm, Rule 1.10(a)(1) imputes the 2021 lawyers' disqualification to her regardless of her personal ignorance.
• Once she leaves, she is analyzed individually under Rule 1.9(b): a lawyer who moves from a firm that formerly represented a client may not represent a materially adverse party in the same or substantially related matter if she acquired Rule 1.6/1.9(c) information material to the matter.
• The test is actual acquisition of information, not mere access. Ruiz never met Daniel and never opened the file, so on these facts she likely acquired nothing material and could take Simone's case.
• Practical trap: any look at the 2021 file - even a quick review to confirm what is in it - converts access into knowledge and disqualifies her. Before she leaves, the firm should restrict her access to the file and document that she never reviewed it.
• If the firm's 2021 knowledge was discussed around her (e.g., in a meeting about Daniel's finances), she has the information and cannot take the case.

Yes - consent may be conditioned, and the condition should be honored and documented.

• Rule 1.9(a) requires informed consent confirmed in writing. Nothing requires the former client to consent unconditionally; a former client may grant a narrow, purpose-limited consent.
• Steps the firm should take:
  1. Put the scope in the written consent itself ("consent is limited to representation of Simone Okafor in Case No. ___; no use of the 2021 tax returns or separate-property schedule").
  2. Advise Daniel in writing that he may seek independent counsel before signing, and give him a reasonable opportunity to do so.
  3. Screen the two 2021 lawyers from the divorce as a prophylactic even though the rule no longer compels it, and bar them from the file.
  4. Confirm the consent is not the product of pressure; a consent obtained by assurances that the firm cannot keep is worthless.
• Limit on consent: Daniel cannot consent to the firm's use of his confidences against him in a way that converts the consent into a waiver of the very confidentiality the rule protects; the firm must actually comply. Consent also does not extend to future, unrelated matters.