Ezel / Ethics Opinions / ABA
ABA September 8, 1999

Can a former in-house lawyer or their new firm take a matter against the lawyer's old employer?

Short answer: Only with limits. The opinion concluded a former in-house lawyer was disqualified from a matter adverse to the former employer only where the lawyer personally handled the same or a substantially related matter, or acquired material protected information about it; general knowledge of the employer was not enough, and any personal disqualification was imputed to the new firm under Rule 1.10(a) absent consent.

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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 1999
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

The committee addressed when a lawyer who had worked in a company's legal department could later, at a law firm or another legal department, take on a matter adverse to that former employer. It held that "their conduct for purposes of former client conflicts of interest is governed, as is that of all other lawyers, by Model Rule 1.9," so the former-client conflict analysis was the same as for any lateral lawyer.

Under Rule 1.9(a), the lawyer was disqualified only if he personally represented the employer in the same or a substantially related matter. The committee was explicit that membership in the department was not enough: "the mere fact that a matter was being dealt with by the legal department while the lawyer was a member of that department does not by itself satisfy the personal representation requirement." Whether the lawyer "represented" the employer turned on his actual responsibilities; "direct involvement in the matter, or a style of supervision that results in access to material information concerning a matter, must be shown." General knowledge of the employer's strategies, policies, or personnel was "not sufficient by itself."

Even without personal representation, Rule 1.9(b) could disqualify the lawyer if other department lawyers handled the matter and he acquired protected information, material to the new matter, under Rule 1.6. Material adversity was measured by reference to Rule 1.7, and the committee concluded "only direct adversity of interests meets the threshold 'material adversity' sufficient to trigger the prohibitions established in Rule 1.9." Where the lawyer was personally disqualified, Rule 1.10(a) imputed the disqualification to his entire new firm unless the former employer consented.

Currency note

This opinion was issued in 1999, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did working in a company's legal department disqualify a lawyer from ever suing that company?

A: No. The opinion held that membership in the department did not by itself disqualify; the lawyer had to have personally represented the employer in the same or a substantially related matter, or acquired material protected information about it.

Q: What about a general counsel who supervised but did not personally handle a matter?

A: The opinion said supervisory or administrative responsibility did not necessarily mean the lawyer represented the organization; direct involvement or supervision giving access to material information had to be shown.

Q: If the former in-house lawyer was disqualified, what happened to the new firm?

A: Under Rule 1.10(a), the personal disqualification was imputed to all lawyers at the new firm unless the former employer consented.

Background and rules framework

The opinion interpreted Rule 1.9 (duties to former clients), including Rule 1.9(a) and (b), Rule 1.10(a) (imputed disqualification), Rule 1.7 (measuring material adversity), and Rule 1.6 (protected information), with reference to Rule 1.13 (organization as client) and Rule 1.11 (successive government and private employment). Because the opinion predated the 2002 revisions, it applied these provisions as they then stood.

Citations and references

Rules of Professional Conduct:

  • ABA Model Rule 1.9, including Rule 1.9(a) and 1.9(b) (duties to former clients)
  • ABA Model Rule 1.10(a) (imputation of conflicts to the firm)
  • ABA Model Rule 1.7 (measuring material adversity)
  • ABA Model Rule 1.6 (protected information)

Other opinions cited:

  • ABA Formal Op. 93-372 (informed consent to future conflicts)

Cases:

  • Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (Pa. 1992)
  • Silver Chrysler Plymouth v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975)
  • Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir. 1981)

See also

Source

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