Rule Text (verbatim from The Florida Bar)
A lawyer who has formerly represented a client in a matter
must not afterwards:
(a) 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;
(b) use information relating to the representation to the
disadvantage of the former client except as these rules would permit
or require with respect to a client or when the information has
become generally known; or
(c) reveal information relating to the representation except as
these rules would permit or require with respect to a client.
Educational reference. This page summarizes a Florida Rule of Professional Conduct for educational purposes. The rule text and Comment are mirrored from the Florida Bar's official publication and are public domain. The plain-English summary and any commentary are the opinion of Phillips, Hunt & Walker and are general information only — not legal advice. Reading this page does not create an attorney-client relationship. If you believe a Florida lawyer has violated this rule, you can file a complaint with The Florida Bar at floridabar.org. Past results do not guarantee a similar outcome.
What this rule means in plain English
A Florida lawyer who used to represent you cannot, in a later matter, represent someone whose interests are materially adverse to yours when the later matter is substantially related to the prior one. The protection extends after your case ends. If your former lawyer pops up on the other side of a related matter, that’s grounds for disqualification — even years after the original representation.
Comment (verbatim from The Florida Bar)
After termination of a client-lawyer relationship, a lawyer may
not represent another client except in conformity with this rule.
The principles in rule 4-1.7 determine whether the interests of the
present and former client are adverse. Thus, a lawyer could not
properly seek to rescind on behalf of a new client a contract drafted
on behalf of the former client. So also a lawyer who has prosecuted
an accused person could not properly represent the accused in a
subsequent civil action against the government concerning the
same transaction.
The scope of a “matter” for purposes of rule 4-1.9(a) may
depend on the facts of a particular situation or transaction. The
lawyer’s involvement in a matter can also be a question of degree.
When a lawyer has been directly involved in a specific transaction,
subsequent representation of other clients with materially adverse
interests clearly is prohibited. On the other hand, a lawyer who
recurrently handled a type of problem for a former client is not
precluded from later representing another client in a wholly distinct
problem of that type even though the subsequent representation
involves a position adverse to the prior client. Similar
considerations can apply to the reassignment of military lawyers
between defense and prosecution functions within the same
military jurisdiction. The underlying question is whether the lawyer
was so involved in the matter that the subsequent representation
can be justly regarded as a changing of sides in the matter in
question.
Matters are “substantially related” for purposes of this rule if
they involve the same transaction or legal dispute, or if the current
matter would involve the lawyer attacking work that the lawyer
performed for the former client. For example, a lawyer who has
previously represented a client in securing environmental permits to
build a shopping center would be precluded from representing
neighbors seeking to oppose rezoning of the property on the basis of
environmental considerations; however, the lawyer would not be
precluded, on the grounds of substantial relationship, from
defending a tenant of the completed shopping center in resisting
eviction for nonpayment of rent.
Lawyers owe confidentiality obligations to former clients, and
thus information acquired by the lawyer in the course of
representing a client may not subsequently be used by the lawyer to
the disadvantage of the client without the former client’s consent.
However, the fact that a lawyer has once served a client does not
preclude the lawyer from using generally known information about
that client when later representing another client. Information that
has been widely disseminated by the media to the public, or that
typically would be obtained by any reasonably prudent lawyer who
had never represented the former client, should be considered
generally known and ordinarily will not be disqualifying. The
essential question is whether, but for having represented the former
client, the lawyer would know or discover the information.
Information acquired in a prior representation may have been
rendered obsolete by the passage of time. In the case of an
organizational client, general knowledge of the client’s policies and
practices ordinarily will not preclude a subsequent representation;
on the other hand, knowledge of specific facts gained in a prior
representation that are relevant to the matter in question ordinarily
will preclude such a representation. A former client is not required
to reveal the confidential information learned by the lawyer in order
to establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter. A conclusion about
the possession of such information may be based on the nature of
the services the lawyer provided the former client and information
that would in ordinary practice be learned by a lawyer providing
such services.
The provisions of this rule are for the protection of clients and
can be waived if the former client gives informed consent. See
terminology.
With regard to an opposing party’s raising a question of
conflict of interest, see comment to rule 4-1.7. With regard to
disqualification of a firm with which a lawyer is associated, see rule
4-1.10.
Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252);
amended April 25, 2002 (820 So.2d 210); amended March 23, 2006,
effective May 22, 2006 (933 So.2d 417); amended November 19, 2009,
effective February 1, 2010 (24 So.3d 63); amended May 29, 2014, effective
June 1, 2014 (140 So.3d 541).