Can a lawyer who used to represent an association later represent a client suing that association?

Plain-English summary

A lawyer had represented a client about six years earlier in buying a cooperative apartment. The client later became an officer of the cooperative association, and during that time the lawyer was retained by the association as its counsel for a nominal annual retainer, attending the annual meeting and answering legal questions. The lawyer said no confidential information was ever given to him and everything was done with the members' full knowledge. The association later terminated his retainer.

The original individual client told the lawyer the association now proposed to amend its bylaws in a way that would seriously affect his legal rights, and that he intended to take legal action if the change was approved. The bylaw change had no relation to anything that occurred while the lawyer represented the association and was proposed after his employment ended.

The committee concluded that representing the individual client would not violate Canon 6, so long as the lawyer obtained the association's express consent and the representation did not involve attacking any documents or contracts the lawyer had been required to prepare while he represented the association.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on representing conflicting interests. Duties to former clients are now addressed by Rule 4-1.9. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer take a case against an organization he used to represent?

A: Under this opinion, the committee allowed it on these facts: the dispute was unrelated to the prior representation, no confidences had been shared, the association gave express consent, and the lawyer would not attack any instrument he had drawn for the association.

Q: What two conditions did the committee attach?

A: The committee required the express consent of the cooperative association and that the representation not involve an attack on any documents or contracts the lawyer had prepared while serving as the association's counsel.

Background and rules framework

The opinion applied the former Canon 6 on conflicting interests to a lawyer's later, adverse representation against a former organizational client. Duties to a former client, including the limits on representing a new client in a substantially related or adverse matter, are now addressed by Rule 4-1.9 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.9.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; former-client duties now in Rule 4-1.9]

See also

• FL Bar Ethics Op. 68-57: Public Defender and Prosecutor
• FL Bar Ethics Op. 72-40: Client Confidences After Death

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-16/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-16-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 68-16
May 7, 1968
Advisory ethics opinions are not binding.
An attorney who represented a cooperative apartment association may later represent a client who is an officer of the association and whose rights may be affected by proposed bylaw amendments if the association consents to the representation and the attorney will not be involved in any attack on an instrument drawn by him for the association.
Canon: 6
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar advises as follows:
Approximately six years ago I represented a client in his purchase of a co-op apartment here in _______ and he has been living in the apartment since that time. Shortly after his purchase of the apartment he became active in the management of the cooperative association, serving as an officer for approximately four or five years. During the time that he was an officer, I was officially retained by the cooperative association as its legal counsel. I was paid a nominal annual retainer for my services, which consisted of attendance at the annual meeting of the membership and answering legal questions as they arose. There was absolutely no confidential information given to me at any time. Everything which was done was done with the full knowledge of all of the members of the association. My employment was terminated after this past annual meeting and I was advised by letter that the corporation no longer desired an attorney on a retainer basis.
I was advised by my original individual client that the corporation now proposes to amend its by-laws and that this amendment will seriously affect his legal rights. He proposes to take legal action against the cooperative association if this change in the by-laws is approved. This change in the by-laws is something which has absolutely no relation to anything which occurred while I was counsel for the association and was proposed subsequent to the termination of my employment.
We are asked in effect whether the proposed representation of the individual client would be violative of Canon 6. In our judgment it would not so long as the inquirer procures the express consent of the cooperative association and so long as it is clear that the representation of the individual in question will not involve the attack on any documents or contracts which the inquirer was required to prepare during the time in which he represented the association.