Can a lawyer sue a former workers'-compensation client years later in an unrelated car-accident case?

Plain-English summary

About ten years earlier, a lawyer had represented a woman in a workers'-compensation claim, settled by a lump-sum consent settlement with medical benefits left open. Later, the woman's children were in an auto accident: her daughter was killed and her son, the driver, was injured, and the parents sued for the son's personal injuries, the daughter's wrongful death, and a derivative claim. The lawyer was asked to represent the driver, owner, and employer of the other vehicle, as co-counsel with another attorney, and sought an opinion confirming this was not an ethical violation.

The Disciplinary Commission concluded the lawyer may ethically represent the driver and owner against his former client. The opinion applied Rule 1.9(a), which bars subsequent representation of a person whose interests are materially adverse to a former client in the same or a substantially related matter. It found no legal relationship between the decade-old workers'-compensation representation and the present auto-accident case; the former client was, in reality, only a titular party in the accident case, and her past or present medical condition would not be in issue, so the matters were not "substantially related."

The opinion added the qualification from Rule 1.9(b): the lawyer may not make adverse use of any information relating to the original representation. If the defense in the present case would require the adverse use of any client confidences, the lawyer should not take it; if that is not a problem, he may enter the accident case without ethical conflict with the former client.

Currency note

This opinion was issued in 1991, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its 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 Treat this page as historical context, not current guidance.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: Can a lawyer take a case adverse to a former client?

A: Per the opinion, yes, where the new matter is not the same as or substantially related to the prior representation and no confidences from that representation would be used against the former client, under Rule 1.9.

Q: Why were the two matters not "substantially related" here?

A: The opinion found no legal relationship between a decade-old workers'-compensation claim and the later auto-accident case, and noted the former client was only a titular party whose medical condition was not at issue.

Q: What limit did Rule 1.9(b) place on the representation?

A: The opinion stated the lawyer may not adversely use information from the original representation; if the defense would require using client confidences, he should decline.

Background and rules framework

The opinion interprets Rule 1.9 (Model Rule 1.9, duties to former clients), applying subsection (a)'s substantial-relationship test and subsection (b)'s bar on adverse use of a former client's information, under the Alabama Rules of Professional Conduct.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Ala. R. Prof. C. 1.9(a) (representation adverse to a former client; substantial relationship)
• Model Rule 1.9 / Ala. R. Prof. C. 1.9(b) (adverse use of a former client's information)

See also

• AL Ethics Op. 1992-15: when a dormant matter turns a current client into a former client
• AL Ethics Op. 1992-21: representing a new client adverse to a current client
• RI EAP Op. 2012-01: Representing a Son in Bankruptcy Is Not a Rule 1.9 Conflict Merely Because a Property Interest of the Mother, a Former Client, Could Be Affected

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1991-42/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-91-42.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-91-42

QUESTION:

"Formerly, approximately ten (10) years ago, I represented __ in the presentation of a Workmen's Compensation claim while she was an employee of _, Inc., ___, Alabama. The claim and representation was settled with a lump sum consent settlement and medical benefits remained opened.

In 1988 her son and daughter were involved in an auto accident wherein her daughter, __, was killed and her son, _, the driver of the auto, was injured. As a result of this auto collision, and ___, as parents and next friends of each minor child, instituted a suit for personal injury damages for their son and for the wrongful death of their daughter, and a derivative claim for injuries as the parents.

I have been asked to represent the driver of the vehicle and owner of the vehicle and employer of the driver, __, which collided with the vehicle occupied by the minor children of the ____s.

I request an opinion to rely upon to make certain my representation of ______, et al., is not an ethical violation. I am asked to join this litigation as co-counsel with another attorney who has his office in Montgomery. For this reason, I need a response as quickly as possible to permit the other attorney to obtain additional legal assistance, if I am wrong in my belief I can assist him."

ANSWER:

You may ethically represent the driver and owner of the vehicle against your former client.

DISCUSSION:

Rule 1.9(a) prohibits subsequent representation of a person whose interests are materially adverse to the interests of a former client in the same or in a substantially related matter. There appears to be no legal relationship to your prior representation of Mrs. __ ten years ago on a worker's compensation claim and the present case. In reality, Mrs. ____ is only a titular party in the auto accident case. Her medical condition, past or present, is not going to be in issue. In the Disciplinary Commission's view, the matters are not "substantially related."

Rule 1.9(b) prohibits your adverse use of any information relating to the original representation of Mrs. ______. If your defense in the present case would require the adverse use of any client confidences then you should not involve yourself. If this is not a problem, then you may enter the accident case without concern for ethical conflict with your former client.

MLM/vf

10/29/91