Can a law firm that jointly represented a trade association and its members later sue the association for some members over a matter from that same representation?

Plain-English summary

A law firm had served as counsel to a trade association since 1952. In a 1977 lawsuit, the firm acted as co-counsel for the association and also represented six individual members; the matter was settled by agreement in 1981 through co-counsel, without the firm's knowledge or consent, after which the firm and the association ended their relationship. Some dissatisfied members then asked the firm to sue the association, which had not waived the conflict, alleging improper disbursal of settlement proceeds and breach of an agreement on the members' right to share in those proceeds. The committee was asked whether proceeding against the association would violate the Code, and whether a waiver from the individual members the firm would represent would make the representation proper.

The committee concluded that neither the lawyer nor the firm could represent individual members against the association where the firm had previously represented both in disputes arising out of the same factual situation. It identified problems under Rule 4-101 (preserving client confidences and secrets), Rule 5-101 (refusing employment where the lawyer's interests may impair independent judgment or where the lawyer would be a witness), Rule 5-105 (refusing employment where another client's interests may impair judgment), and Rule 5-107(c) (representing a client with undivided fidelity).

On the waiver question, the committee held that obtaining a waiver from only some of the multiple clients was insufficient. Under Rule 5-105(c), a waiver is effective only if each client consents after full disclosure of the possible effect of the representation on the lawyer's independent professional judgment for all clients involved. The committee also stated that the clients' settlement through co-counsel, and their later discharge of the firm, did not terminate the firm's continuing ethical responsibilities to the association in the matters where the firm had represented it. It noted that the committee had reached the same result in many prior opinions, citing the recent discussion in Opinion 701.

Currency note

This opinion was issued in 1983, 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: Can a firm sue an organization it used to represent on behalf of some of its members?

A: The opinion concluded not where the firm jointly represented the organization and the members in a matter arising from the same facts, absent a waiver from every affected client; the prior joint representation and the duty to preserve confidences barred it.

Q: Is a waiver from the new clients enough?

A: No. Under Rule 5-105(c), the committee held a waiver is effective only if each of the multiple clients, including the association, consents after full disclosure; consent from only some clients was insufficient.

Q: Did the firm's discharge end its duties to the association?

A: No. The committee said the clients' settlement through co-counsel and the firm's later discharge did not terminate the firm's continuing ethical responsibilities to the association in the matters where it had represented the association.

Background and rules framework

The opinion applied former Illinois Code Rule 4-101 (confidences and secrets), Rule 5-101 (the lawyer's own interests and the witness bar), Rule 5-105 and 5-105(c) (declining or continuing employment turning on multiple-client conflicts and the disclosure-and-consent waiver standard), and Rule 5-107(c) (undivided fidelity). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.7 (concurrent conflicts) and 1.9 (duties to former clients), corresponding to ABA Model Rules 1.7 and 1.9.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• ISBA Opinion 701 (issued January 6, 1981): discussion to the same effect on representing a party against a former joint client

See also

• ISBA Ethics Op. 05-01: Cross-Examining a Former Client
• ISBA Ethics Op. 13-02: One Partner Suing Another
• ABA Formal Op. 00-417: Settlement Limits on Lawyers

Source

• Landing page: https://www.isba.org/ethics/opinions/790