Can a lawyer represent a contract purchaser seeking to amend a contract that the lawyer's firm drafted years earlier for the seller, who was then a firm client?

Plain-English summary

In 1968, partner A represented X in the installment sale of X's stock in Corporation 1 to Corporation 2; neither A nor the firm represented X afterward, and A died in 1978. B joined the firm in 1974 and became a partner. One current member of the firm had been there in 1968. Corporation 2, the buyer, now wanted B to represent it in seeking and negotiating amendments to that same installment contract, because a payment ceiling left the maximum annual payment short of the interest due.

The committee said B had to clear two hurdles. On the first, the duty to the former client X under Rule 4-101(b), the committee relied on Opinions 644 and 701: A, if living, would be directly disqualified, and the member who was present in 1968 is presumed to have shared X's confidences and is vicariously disqualified unless he rebuts the presumption. The committee then extended that presumption to B, even though B joined six years after the representation, reasoning that the firm's continuity, likely retention of X's files, and B's access to them created a "palpable danger" that X's confidential information was available to B. It saw no rational basis to treat B differently from the member who had been present in 1968; any difference goes to the quantum of evidence needed to rebut the presumption, not to whether the presumption applies. So B is vicariously disqualified unless he rebuts it.

On the second hurdle, the committee held that even if B rebutted the presumption, he would still be directly disqualified. Corporation 2's need for amendments could lead X to question the firm's 1968 work, which the firm would have to defend under Rule 5-107(a); B's financial and personal interest in the firm (Rule 5-101(a)) would then conflict with zealous representation of Corporation 2, so under Canon 5 and Rules 5-105(a) and 5-107(a) he must decline.

Currency note

This opinion was issued in 1981, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.7 and 1.9), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Is a lawyer disqualified from opposing a former firm client even if he joined the firm after that client's matter ended?

A: The opinion concluded yes; the presumption that firm members share a former client's confidences extends to a lawyer who joined later, given the firm's continuity and likely access to the client's files, unless he rebuts the presumption.

Q: Can the lawyer overcome the disqualification?

A: Per the opinion, he may rebut the presumption of shared confidences, but even then he remains directly disqualified because his stake in the firm conflicts with the firm's duty to defend its earlier representation.

Q: Why does the firm's interest in its prior work matter?

A: The committee reasoned that the buyer's push for amendments could lead the former client to question the firm's 1968 work, which the firm must defend under Rule 5-107(a), creating a personal-interest conflict for the lawyer under Rule 5-101(a).

Background and rules framework

The opinion applied former Illinois Code Rule 4-101(b) (preserving a former client's confidences), Rule 5-101(a) (a lawyer's own interests affecting representation), Rule 5-105(a), and Rule 5-107(a), under Canon 5. The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 (current-client conflicts) and 1.9 (duties to former clients), corresponding to ABA Model Rules 1.7 and 1.9, with the firmwide imputation of the conflict reflected in Model Rule 1.10.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 4-101(b), 5-101(a), 5-105(a), 5-107(a); Canon 5 (applied in the opinion)
• Illinois RPC 1.7, 1.9 (2010 equivalents per the Board's affirmation)
• MR 1.9 (duties to former clients); MR 1.10 (imputation of conflicts); MR 1.7 (concurrent conflicts)

Other opinions cited:

• ISBA Opinion 644: presumption of shared confidences among firm members
• ISBA Opinion 701: vicarious disqualification and rebuttal of the shared-confidences presumption

See also

• ISBA Ethics Op. 790: Representing a Party Against a Former Client
• ISBA Ethics Op. 85-11: Client Against the Spouse of a Former Client
• ISBA Ethics Op. 05-01: New Client in a Matter Involving a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/691