By Adrienne Griffis
Yesterday, the Supreme Court overruled precedent and clarified the requirements of the Arkansas Professional Rules of Conduct regarding when an attorney must be disqualified from participating in a case if the attorney’s former law firm represents an opposing party. In The Park Apartments at Fayetteville, L.P. v. Plants, 2018 Ark. 172, the Court interpreted Rule 1.9, which is captioned “Duties to Former Clients” and states:
A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired [confidential information] that is material to the matter; unless the former client gives informed consent confirmed in writing.
Ark. R. Prof’l Conduct 1.9(b) (2017). The Park Apartments case involves a dispute between an apartment complex (“the Park”) and a tenant, Shilah Plants (“Plants”). Plants moved to disqualify one of the Park’s attorneys based on Rule 1.9 because the attorney had previously worked at Legal Aid, which was representing Plants in the case.
Due to the small size of the legal market in Arkansas, Rule 1.9 has frequently been a source of frustration and confusion for attorneys who have practiced at multiple law firms during their careers. The Supreme Court has now cleared up some of that confusion by clarifying that disqualification is only required when the attorney has actual knowledge of the client’s confidential information, rather than merely having access to such information. The Supreme Court correctly based its decision on the plain language of the rule, which clearly states that the lawyer must have “acquired” confidential client information. Id. However, two previous cases had muddied the waters by requiring an attorney challenging disqualification to prove his or her “lack of access” to the information in addition to lack of knowledge. There is a presumption that the attorney in question has all the confidential knowledge that any member of his or her previous firm possessed, but the attorney can rebut this presumption by proving that he or she did not have actual knowledge of the information. (Park Apartments does not overrule the application of this presumption.) Accordingly, the conflation of “knowledge” and “access” may have occurred because establishing that an attorney did not have access to the client’s confidential information is a good way to rebut the presumption that he or she had knowledge of such information. Indeed, in Park Apartments, the Supreme Court held that the attorney rebutted the presumption by establishing that she was assigned to a different division, did not participate in any conferences for the division in charge of Plants’ case, and did not access Plants’ file or otherwise participate in her case.
Although not at issue in Park Apartments, it is important to note that a dispute over disqualification can be avoided by obtaining a written waiver of the conflict of interest from the opposing party. Rule 1.9 does not require disqualification of an attorney, even if he or she has actual knowledge of confidential information, if the party gives “informed consent confirmed in writing.” Obtaining a waiver is the best practice to avoid ancillary litigation over your participation in the case or the potential for a malpractice claim. The waiver should state the factual basis for any imputed and actual conflicts of interest and affirm that the party, with knowledge and understanding of these facts, waives any conflicts of interest which may exist related to your participation in the case.
 See Norman v. Norman, 333 Ark. 644, 654, 970 S.W.2d 270, 274 (1998); Burnette v. Morgan, 303 Ark. 150, 155–56, 794 S.W.2d 145, 148 (1990).