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
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