Can a government lawyer litigate against a former private client without that client's consent?

Plain-English summary

A lawyer who had moved from a private firm to the Attorney General's staff was now handling litigation for the state involving a land transaction between the state and a corporate client he had represented in private practice. He was unaware of any knowledge of the former client's operations relevant to the litigation, and he had asked his old firm whether it objected.

The committee treated consent as the crux. It said that if the former private client did not object, there would normally be no ethical problem, but that an exception could arise where public confidence might be undermined by substantial publicity given to the lawyer's switch of sides (citing EC 9-2). A majority saw no ethical problem assuming consent was given; assuming consent was not given, the committee concluded the lawyer should not proceed, in large measure because the appearance of professional impropriety must be avoided. Certain members observed that nothing in the Code bars a lawyer forever from undertaking representation adverse to a former client absent consent: while a lawyer should be wary and may not switch sides on the same or related matters, some former representation is so unrelated in subject matter or so distant in time that the lawyer is not ethically barred from opposing the former client even without consent.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 9-2), the subject matter of which (duties to former clients) is 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 Treat this page as historical context, not current guidance.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 government lawyer sue a former private client?

A: Under this opinion, not without that client's consent. With consent, the committee saw no ethical problem assuming no material confidences were involved.

Q: What did the committee say the issue turns on?

A: The opinion treats consent as the crux, with the appearance of professional impropriety as the reason for declining when consent is not given (citing EC 9-2).

Q: Is there ever adversity to a former client without consent?

A: Some committee members noted that representation so unrelated in subject matter or so distant in time may not be barred even absent consent, though a lawyer may never switch sides on the same or related matters.

Background and rules framework

The opinion applied EC 9-2 of the former Code of Professional Responsibility, addressing the appearance of impropriety. Its subject matter (a lawyer's duties to former clients) is now governed by Rule 4-1.9. The Model Rule analogue is Rule 1.9.

Citations and references

Rules of Professional Conduct:

• EC 9-2 [Code of Professional Responsibility; former-client duties now in Rule 4-1.9]

See also

• FL Bar Ethics Op. 71-18: Suing an Unrelated Former Client
• FL Bar Ethics Op. 71-46: Advising a Former Client of a New Claim
• FL Bar Ethics Op. 72-40: Client Confidences and an Executor Bank

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-14/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-14-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-14
May 21, 1971
Advisory ethics opinions are not binding.
A member of the Attorney General's staff should not proceed in an action against a former private client unless he has that client's consent.
CPR: EC 9-2
Chairman Massey stated the opinion of the committee:
A member of The Florida Bar is now on the staff of the Attorney General's office for the state. Previously, he was associated with a private law firm in representation of a corporate client. He is now involved in litigation in behalf of the state as it pertains to a land transaction between the state and this former corporate client. The attorney is not aware of any knowledge of the former client's operations, plans or status as concerns the involved litigation. He has inquired of his old private firm if it objects to his handling of the litigation. May he ethically handle the litigation?
It is first observed that if the former private client did not object to the representation in behalf of the state, there would normally be no ethical problem. Consent is generally the crux of this type of matter. An exception exists when public confidence might be undermined by reason of substantial publicity being given to the representation and to the fact of the inquiring attorney having previously been on the side of the private client. See EC 9-2. In the instant case, a majority of the Committee sees no ethical problem assuming consent is given. On the other hand, the Committee determines, assuming consent is not given, the attorney should not proceed with the representation of the state. In a large measure, this result obtains since the appearance of professional impropriety must be avoided.
Certain members of the Committee observe that once a lawyer has rendered service for a particular client, there is nothing in the CPR to the effect he may never undertake representation adverse to the former client in the absence of consent. Generally, a lawyer should be wary of accepting employment adverse to a former client and he may not switch sides with respect to the same or related matters. However, there can be situations wherein former representation is so unrelated in subject matter or so distant in time that the lawyer is not ethically barred from representation in opposition to the former client notwithstanding lack of consent.