Question: Attorney wishes to impeach Former Client who is a witness in another matter involving a current client and wants to know when information of a former client becomes generally known for purposes of Rule 4-1.9(c)(1)?

Answer: Rule 4-1.9(c)(1), in relevant part, prohibits a lawyer who has formerly represented a client in a matter from using “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.” In considering when information is generally known, it is important to note that Missouri Informal Advisory Opinion 2015-02 applies Rules 4-1.9(c) and 4-1.6 and states that “[e]ven if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed….” For the information of Former Client to be generally known pursuant to Rule 4-1.9(c)(1), it is the opinion of this office that it must be generally known outside just the public records, meaning it would be more recognizable by members of the public in the community, or in the industry of the former client, not simply because it was discussed in open court such that there are court records available through public repositories of such information, including Missouri Case.net. See also Missouri Informal Advisory Opinions 960248 and 960170. The generally known exception of Rule 4-1.9(c)(1) is restricted to use of the information of Former Client to Former Client’s disadvantage, but Rule 4-1.9(c)(2) still prohibits Attorney from revealing information relating to the representation of Former Client “except as these Rules would permit or require….” Therefore, Attorney may not use or reveal information of Former Client, but may use generally known information of Former Client for purposes of impeaching Former Client who is now a witness in another matter.   

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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