Can a D.C. lawyer take on a matter adverse to a former client by limiting the scope of the new representation so that it is not substantially related to the prior matter?
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This page answers the general question as of 2008. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 343 (published February 2008) addresses recurring inquiries about whether a lawyer can limit her own participation in a matter so that the part she handles is not substantially related to a prior matter she or her firm handled for a former client with adverse interests. The Committee concludes that, in the right circumstances, the answer is yes. Rule 1.9 bars a lawyer from representing a person in the same or a substantially related matter adverse to a former client absent informed consent, and two matters are substantially related where there is a substantial risk that confidential factual information normally obtained in the prior representation would be useful or relevant in the new matter. By limiting the scope of the new representation, a lawyer may sometimes remove that risk.
The opinion grounds the analysis in Rule 1.2(c), which allows a lawyer to limit the objectives of a representation with the client's informed consent, and in prior Opinion 330 (2005) recognizing limited-service arrangements. It illustrates with two examples. First, a discrete legal issue: a patent lawyer whose firm previously represented Company may represent a new client only on whether the client's patent was properly assigned to it, while other counsel pursue the infringement claim against Company, provided the lawyer's work never extends to the infringement issues and the two sides are handled by wholly separate litigation teams. Second, a discrete litigation stage: a lawyer may handle only a Supreme Court certiorari petition raising a pure question of appellate jurisdiction, where the firm's earlier work for the opposing party involved the underlying facts that are not relevant to the legal question on review, and other counsel handled the lower-court proceedings.
The opinion stresses these are idealized scenarios and that whether a conflict can actually be avoided is fact-dependent. The limitation must be real: the lawyer must ensure her participation never reaches the related issues, may need to maintain separate teams or screens, must explain the costs and rigidities to the client and obtain informed consent under Rules 1.2(c) and 1.4(b), and must still be able to provide competent representation. The Committee adds two limits. The approach does not apply to discrete stages of the same matter; a lawyer cannot switch sides in the same case at a later stage by recasting the issues. And the opinion does not address former government lawyers under Rule 1.11, which raises distinct concerns, leaving that question for another day.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer may sometimes avoid a Rule 1.9 conflict by limiting a new representation to a discrete legal issue or a discrete stage of litigation, so that the limited matter is not substantially related to the prior matter handled for a former client. The opinion concludes the limitation must genuinely eliminate any substantial risk that confidential factual information normally obtained in the prior representation would be useful or relevant in the new matter, which may require separate litigation teams; the current client must give informed consent to the limited scope under Rules 1.2(c) and 1.4(b); and the lawyer must remain able to provide competent representation.
The opinion concludes the approach does not allow a lawyer to switch sides at a later stage of the same matter, and it does not decide whether former government lawyers may use the same approach under Rule 1.11. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Can a lawyer take a matter adverse to a former client without the former client's consent?
A: The opinion concludes a lawyer may, where the lawyer limits the new representation to a discrete issue or stage that is not substantially related to the prior matter, so there is no substantial risk that confidential factual information from the prior representation would be useful or relevant.
Q: What makes two matters "substantially related" under Rule 1.9?
A: The opinion concludes two matters are substantially related if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation is useful or relevant in advancing the client's position in the new matter.
Q: What conditions does the opinion attach to a limited-scope arrangement?
A: The opinion concludes the limitation must be genuine (the lawyer's work cannot reach the related issues, which may require wholly separate litigation teams), the client must give informed consent to the limited scope under Rules 1.2(c) and 1.4(b), and the lawyer must be able to provide competent representation.
Q: Can a lawyer switch sides at a later stage of the same case?
A: No. The opinion concludes that a lawyer whose firm represented a party in a case cannot represent the opposing side at a later stage of that same matter, regardless of how the scope is limited.
Q: Does this apply to former government lawyers?
A: The opinion concludes it does not decide that question. Although Rules 1.9 and 1.11 use the same "substantially related" language, the former-government-lawyer context raises distinct concerns, and the Committee leaves the issue for another day.
Background and rules framework
The opinion interprets D.C. Rule 1.9 (duties to former clients and the substantial-relationship test), read with D.C. Rule 1.2(c) (limiting the objectives of a representation with informed consent), Rule 1.4(b) (explaining a matter so the client can make informed decisions), and Rule 1.10 (imputed disqualification within a firm). It relies on prior D.C. Opinion 330 (2005) on limited-service arrangements and on the Restatement (Third) of the Law Governing Lawyers section 132.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.9 / Model Rule 1.9 (former clients; substantial relationship)
- D.C. RPC 1.2(c) / Model Rule 1.2 (limiting the scope of representation)
- D.C. RPC 1.4(b) / Model Rule 1.4 (communication)
- D.C. RPC 1.10 / Model Rule 1.10 (imputed disqualification)
Other opinions and authorities:
- D.C. Ethics Op. 330 (2005) (limited-service arrangements)
- New York City Bar Op. 2001-3 (limiting scope to avoid a conflict)
- ABA Formal Op. 07-447 (collaborative law and limited scope)
- Restatement (Third) of the Law Governing Lawyers section 132
See also
- NYC Bar Op. 2001-3: Limiting Scope to Avoid a Conflict
- ABA Formal Op. 497: Materially Adverse Conflicts
- ABA Formal Op. 479: 'Generally Known' Exception
- DC Ethics Op. 352: Temporary Contract Lawyers and Imputation
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-343
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