Can a lawyer represent a client against a witness who is the lawyer's former client from an unrelated matter, and cross-examine that former client?

Plain-English summary

A lawyer who had represented a client in a since-resolved divorce was now representing a different client at a DCFS administrative hearing contesting an abuse-and-neglect finding. The former divorce client appeared on the agency's witness list and was expected to testify adversely to the current client; she objected to being cross-examined by her former lawyer, saying she still considered him her lawyer. The lawyer said he no longer represented her and would decline any new matter for her.

The Committee first treats the divorce client as a former, not current, client, while noting that whether a client has become "former" is fact-specific and that an unterminated relationship could still be current. (If she were current, Rule 1.7(a) and ABA Formal Opinion 92-367 would bar cross-examination causing her a "concrete disadvantage" absent consent.) Because she is a former client, Rule 1.9 governs. The DCFS matter is neither the same as nor substantially related to the prior divorce, so Rule 1.9(a)(1) does not bar the new representation without her consent.

On cross-examination, the Committee applies Rule 1.9(a)(2): the lawyer may not use information relating to the prior representation to the former client's disadvantage unless it is permitted under Rule 1.6 or has become generally known (a concept the opinion ties to "common knowledge in the community" from the Restatement of Agency). Because discrediting her testimony would be a "disadvantage," the lawyer may cross-examine her only if (1) it can be done without using prior-representation information that is not generally known, and (2) those duties do not materially limit the defense. Under Rule 1.7(b), the lawyer should continue only if he reasonably believes the current client will not be adversely affected and that client consents after disclosure. Finally, if the lawyer is disqualified from the cross-examination, Rule 1.10 imputes that bar to his whole firm; he may instead ask unaffiliated co-counsel to conduct it.

Currency note

This opinion was issued in 2005, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion holds that representation adverse to a former client in an unrelated, non-substantially-related matter is permitted under Rule 1.9(a)(1), but cross-examining the former client is constrained by Rule 1.9(a)(2)'s bar on using prior-representation information to her disadvantage and by Rule 1.7(b)'s material-limitation test for the current client. The Committee identifies whether the cross-examination can proceed without protected information, and whether the duty to the former client hampers the current defense, as the operative factors, and notes that a Rule 1.9 disqualification is imputed firm-wide under Rule 1.10.

Common questions

Q: Can a lawyer take a matter where a former client will testify against the new client?

A: Yes, on these facts. The opinion concludes that because the new matter is neither the same as nor substantially related to the former client's prior case, Rule 1.9(a)(1) does not bar the representation without the former client's consent.

Q: Can the lawyer cross-examine the former client?

A: Only within limits. The opinion concludes the lawyer may cross-examine her only without using information from the prior representation to her disadvantage (unless it is generally known) and without materially limiting the current client's defense under Rule 1.7(b).

Q: What counts as information the lawyer cannot use against the former client?

A: The opinion explains Rule 1.9(a)(2) protects any "information relating to the prior representation," broader than a confidence or secret, and bars using it to the former client's disadvantage unless it has become generally known (common knowledge in the community).

Q: If the lawyer is disqualified, can a colleague in the firm do the cross-examination?

A: No. The opinion concludes a Rule 1.9 disqualification is imputed to the whole firm under Rule 1.10; the lawyer would instead need unaffiliated co-counsel to conduct the cross-examination.

Background and rules framework

The opinion interprets Illinois Rule 1.9 (duties to former clients, corresponding to Model Rule 1.9), Rule 1.7(b) (material-limitation conflicts, corresponding to Model Rule 1.7), Rule 1.10 (imputed disqualification, corresponding to Model Rule 1.10), and Rule 1.6 (confidentiality, corresponding to Model Rule 1.6). The analysis turns on the former-client status of the witness and what information from the prior representation may be used in cross-examination.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Illinois Rule 1.9(a) (duties to former clients; use of information)
• Model Rule 1.7 / Illinois Rule 1.7(b) (material-limitation conflicts)
• Model Rule 1.10 / Illinois Rule 1.10 (imputed disqualification)
• Model Rule 1.6 / Illinois Rule 1.6 (confidentiality)

Cases:

• Swanson v. Wabash, Inc., 585 F. Supp. 1094 (N.D. Ill. 1984), use of co-counsel for cross-examination

Other opinions cited:

• ABA Formal Opinion 92-367 (1992): cross-examining a current client who is a witness
• ISBA Advisory Opinions 90-05, 91-20, 98-01 (imputed disqualification; former-client consent; substantial relationship)

See also

• CA COPRAC Op. 1998-152: Imputed Knowledge and Former-Client Consent
• ABA Formal Op. 00-417: Settlement Terms Limiting Use of Information
• ISBA Ethics Op. 04-01: A Non-Waivable Conflict Over Contested Property

Source

• Landing page: https://www.isba.org/ethics/opinions/0501