Can a lawyer who used to negotiate leases for a developer now represent a tenant negotiating a lease with that same former-client developer?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
The inquiring attorney had once represented Client X, an international real estate developer, in negotiating leases with shopping-center tenants. The attorney left the firm and no longer represented X. Client Y, a retailer leasing shopping-center space, asked the attorney to represent it in a lease negotiation in which X was the leasing agent. X wrote to the attorney asking him to refrain from representing Y. The inquiry asked whether the attorney may represent a client against a former client whom he represented in similar matters.
The committee drew on Opinion 90-5, where representing a husband in a divorce after jointly representing both spouses was a conflict, because the prior representation necessarily involved sharing confidences and the subject matter was substantially related. The committee found the present facts similar: although the new lease involves different property than the prior negotiations, lease negotiation is a substantially related matter, and representing a party in lease negotiations often requires sharing confidences. The attorney likely learned, through representing X, which lease terms X would compromise.
Applying Rule 1.9, the committee concluded that because the matter is substantially related, the attorney has a conflict that cannot be cured without the former client's consent; since X will not consent, the attorney must withdraw from representing Y in the lease negotiation with X. The committee added that continuing could also violate Rule 1.6(a), which bars using or revealing a client's confidence or secret without consent, because the attorney acquired confidences in the prior lease work. With no consent forthcoming, the attorney must withdraw from representing the new client as to negotiating leases with the former client.
Currency note
This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 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 lawyer who negotiated leases for a developer now oppose that developer for a tenant?
A: The opinion concluded the lawyer may not without the former client's consent, because lease negotiation is a substantially related matter in which confidences were likely shared, so Rule 1.9 bars it.
Q: Does it matter that the new lease is for different property than the old work?
A: No. The opinion concluded the matter is still substantially related, because lease negotiation skills and the former client's compromise positions carry over.
Q: What happens when the former client refuses to consent?
A: The opinion concluded the conflict cannot be cured, so the lawyer must withdraw from representing the new client in the lease negotiation with the former client.
Background and rules framework
The opinion applied Rule 1.9(a) (no representation in a substantially related matter materially adverse to a former client without consent) and Rule 1.6(a) (protection of a former client's confidences and secrets) to a lawyer asked to negotiate leases against a former-client developer (Model Rules 1.6, 1.9).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9(a)
- Model Rule 1.6 (confidentiality) / Illinois Rule 1.6(a)
Other opinions cited:
- ISBA Opinion 90-5: conflict in representing one spouse after joint representation of both.
See also
- ISBA Ethics Op. 91-05: Estate Work vs. a Former Creditor Client
- ISBA Ethics Op. 90-24: Married Lawyers on Differing Sides
- ISBA Ethics Op. 90-26: Fee Entitlement After a Conflict Withdrawal
Source
- Landing page: https://www.isba.org/ethics/opinions/9111
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