If a non-client buys a former client's interest in the matter a lawyer once handled, can that buyer invoke the lawyer's duties to disqualify the lawyer or claim the former client's confidences?

Plain-English summary

In a tangled foreclosure and specific-performance dispute, Lawyer X had represented mortgage holder A, then withdrew. A later sold its first mortgage to the Purchasers, who substituted in as plaintiffs. When Lawyer X subsequently appeared for Mr. Y, whose interests were adverse to the Purchasers, the question arose whether the Purchasers, having succeeded to A's substantive rights, could invoke the duties Lawyer X had owed A to bar that adverse representation or to claim A's confidences.

The committee answered no. It explained that the duties at issue, confidentiality under Canon 4 and former Rule 4-101 and the duty to avoid conflicting representations under Canon 5 and former Rule 5-105, are duties owed to a client (or at least a prospective client). The Purchasers had never been clients of Lawyer X. Succeeding to A's substantive rights did not create an attorney-client relationship between the Purchasers and Lawyer X, because, as the committee put it, an attorney-client relationship "is not a chattel to be sold or assigned by a client for the benefit of another."

The committee added that Lawyer X still owed continuing duties to his former client A under former Rules 4-101 and 5-105, duties that survive the end of the representation and must be fully observed.

Currency note

This opinion was issued in June 1987, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.6 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 Treat this page as historical context, not current guidance.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 party who buys the former client's interest disqualify the lawyer from the matter?

A: The opinion concluded no; the duty to avoid adverse representation was owed to the original client, and a non-client successor cannot invoke it to disqualify the lawyer.

Q: Does buying the client's interest give the successor access to the former client's confidences?

A: No. The committee held that confidentiality duties run to the client, and a successor in interest acquires no right to the lawyer's confidences from the prior representation.

Q: Does the lawyer still owe anything to the original former client?

A: Yes. The opinion stressed that Lawyer X continued to owe former client A the confidentiality and conflict duties under former Rules 4-101 and 5-105, which survive the end of the representation.

Background and rules framework

The opinion applied former Illinois Code Canon 4 / Rule 4-101 (confidences and secrets) and Canon 5 / Rule 5-105 (declining or continuing conflicting employment). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.6 (confidentiality) and 1.9 (duties to former clients), corresponding to ABA Model Rules 1.6 and 1.9.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 4-101 and Canon 4 (confidences and secrets, applied in the opinion)
• Illinois Code Rule 5-105 and Canon 5 (conflicting employment, applied in the opinion)
• Illinois RPC 1.6 and 1.9 (2010 equivalents per the Board's affirmation)
• MR 1.6 (confidentiality); MR 1.9 (duties to former clients)

See also

• ISBA Ethics Op. 88-07: Suing a Former Village Client
• ISBA Ethics Op. 05-01: Cross-Examining a Former Client
• ISBA Ethics Op. 86-12: Ex-Client Officer vs. Defense Work

Source

• Landing page: https://www.isba.org/ethics/opinions/8617