Under the last prong for imputed disqualification, one must determine whether“ any lawyer remaining in the firm has or has had access to material information protected by Rule 1.6.” When considering this issue, the North Dakota Supreme Court has stated its belief that“ the common experience in North Dakota law firms [ is for ] attorneys to discuss their cases with each other. [ It is therefore ] reasonable and justified to infer that each attorney had access to, and therefore knowledge of, all confidential information of the firm’ s clients.” Heringer at 367. Additionally, a lawyer has an affirmative requirement to show a lack of access to material information in a former client’ s matter. Id. at 366. Here, there is no information about L1’ s access to information related to the Firm’ s prior representation of Former Client. However, based upon the Supreme Court’ s assumption of access, and the requirement that any doubt be resolved in favor of disqualification, the third prong also appears to be met.
If all three prongs of 1.10( c) are met, L1 and the Firm are disqualified from further representing Current Client unless Former Client properly waives the imputed disqualification. Rule 1.10( d) provides in pertinent part that a disqualification under Rule 1.10 can be waived by the affected client’ s consent after consultation. N. D. R. Prof. Conduct l. I0( d). Additionally, Comment 1 to the Rule provides the client’ s consent is required before the disqualification can be waived, that obtaining the consent in writing is the preferred practice, and that without the writing, the consent may be difficult to prove.
Therefore, even if all three prongs for imputed disqualification are met with L1’ s representation of Current Client and pursuit of the motion to unseal, Former Client could waive such disqualification under Rule 1.10( d).
II. Even if Former Client Waives Any Imputed Disqualification, L1 May Have to Withdraw from Representation of Current Client.
Even though L1 could overcome imputed disqualification under Rule 1. I0( c) by obtaining Former Client’ s consent, the analysis as to whether L1 can continue to represent Current Client does not end. N. D. R. Prof. Conduct 1.9( c) provides that“[ a ] lawyer... whose present... 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 in... a substantially related matter except as these Rules would require or permit with respect to a client, or when the information has become generally known; or( 2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.” Also,“[ a ] fter termination of a lawyer-client relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule.” N. D. R. Prof. Conduct 1.9, cmt. 1.
As an initial matter, it is important to note Rule 1.9( c) does not specify that a former client may consent to the lawyer’ s use or revelation of information addressed by that section of the Rule. Even though Comment 9 to Rule 1.9( c) states the Rule’ s provisions can be waived if the client gives consent, paragraph 5 of the Scope of the Rules provides that“[ t ] he Comments are intended as guides to interpretation, but the text of each Rule is authoritative”
( emphasis added). The fact that Rule 1.9( c) does not specify the ability for a client to consent to use of information obtained from prior representations to disadvantage the former client is significant because subsections( a) and( b) of the Rule both affirmatively contemplate and specify such consent. It is also significant that Rule l. 8( b), which addresses the use of the same type of information with a current client, affirmatively contemplates and specifies that a current client may consent to such use. The absence of any specified ability of a former client to consent to the use or revelation of the types of information addressed in Rule 1.9( c) must therefore be interpreted to be intentional. Thus, under Rule 1. 9( c), a former client may not consent to the use or revelation of information relating to the representation to the disadvantage of the former client.
Rule 1.9( c) is directly applicable to this analysis because Ll’ s Firm has represented Former Client and specifically requested the court records be sealed. Under Rule 1.9( c)( l), Ll shall not use information relating to the representation of Former Client to Former Client’ s disadvantage in a substantially related matter except( 1) as permitted or required by the Rules or( 2) when the information has become generally known. There is no indication the information in the sealed court files has become generally known. If it had, Ll would likely not need to file a motion to unseal. In addition, based upon the facts presented, no separate rule authorizes or requires the disclosure of the sealed court records. While Rule 1.10( d) allows Former Client to waive the imputed disqualification, that does not authorize or require L1 to disclose information that is disadvantageous to Former Client.
Here, by the simple fact that Ll has identified the two prior cases that L2 previously requested to be sealed, Ll is using information relating to the Firm’ s representation of Former Client. See N. D. R. Prof. Conduct Rule 1.6, cmt. 3( calling for the phrase“ information relating to the representation” to be broadly construed in applying the rules of lawyer-client confidentiality). The Rule prohibits the use of such information whether or not Ll subjectively knew about the Firm’ s representation of Former Client. One can presume the court records, if unsealed, will be used to the disadvantage of Former Client because L1’ s Firm specifically requested the files be sealed for the advantage of Former Client.
At the same time, Ll has an ethical obligation to provide competent and diligent representation to Current Client. See N. D. R. Prof. Conduct Rules 1.1 and 1.3. If competent and diligent representation of Current Client requires a lawyer to pursue unsealing and using the court records on behalf of Current Client, then L1 cannot reasonably fulfill his professional duties to Current Client without using information related to the Firm’ s prior representation of Former Client, which is prohibited. As a result, L1 must likely withdraw from representing Current Client.
As a final consideration, the North Dakota Supreme Court has held that the“ appearance of impropriety” standard, although not present in the language of the Rules of Professional Conduct, still has some application to a lawyers’ ethical duties.“[ T ] o preserve public confidence in the legal profession, and to insure the confidentiality and integrity of client information, lawyers and law firms must
FALL 2017 35