Can a former lawyer use information from the representation, like surveillance photos, against the ex-client in a later proceeding?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A client hired Attorney A for a workers' compensation case, then replaced him with Attorney B, who concluded that a third-party personal-injury claim should have been filed but was now time-barred, and filed a legal malpractice claim against Attorney A. After Attorney B won a permanent-total-disability award, the respondent's attorney filed a Section 19(h) petition for review supported by photographs showing the client performing physical activities inconsistent with her claimed disability. Those photographs may have been taken by persons employed by Attorney A, presumably to defend the malpractice case, though the facts did not show whether they were taken before or after the representation ended. The inquiry asked whether disclosing the photographs violated the Rules, and whether a discharged attorney may recover fees.
On the first question, the opinion explained that Rule 1.9(a)(2) bars a former lawyer from using information relating to the representation to the former client's disadvantage unless permitted by Rule 1.6, and that Rule 1.9's proscription reaches any information relating to the representation, whether or not gained during the professional relationship. Rule 1.6 bars using or revealing a client's confidences or secrets without consent, subject to an exception allowing use to defend against an accusation of wrongful conduct. The opinion concluded that if Attorney A gained the photograph information during the representation, Rule 1.6 barred its use against the client absent consent, but A could use the photographs without consent to the extent necessary to defend the malpractice claim. Rule 1.9 likewise barred use even if the photographs were taken after termination, since they related to the representation and would disadvantage the client, but A could again use them to the extent necessary to defend the malpractice claim under the same exception. The opinion drew on Opinions 91-5, 91-11, and 91-20.
On the second question, the opinion concluded that a discharged attorney is entitled to quantum meruit compensation for services rendered before termination (Loggins v. Estate of Magid), while expressing no opinion on how any violation of Rules 1.6 or 1.9 might affect Attorney A's fee claim, noting King v. King, which reversed a fee award where the attorney had represented adverse, conflicting interests in the same litigation.
Currency note
This opinion was issued in 1993, 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 (pointing to Rules 1.5, 1.6, and 1.9), while noting 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 former lawyer use the ex-client's information against the client later?
A: The opinion concluded Rules 1.9 and 1.6 bar using information relating to the former representation to the client's disadvantage, whether or not it was gained during the representation.
Q: Is there any exception that lets the lawyer use the information?
A: Yes. The opinion concluded the lawyer may use the information to the extent necessary to defend against an accusation of wrongful conduct, such as the client's legal malpractice claim.
Q: Can a discharged lawyer still collect a fee?
A: The opinion concluded a discharged attorney is entitled to quantum meruit compensation for services rendered before termination, citing Loggins v. Estate of Magid, but expressed no view on how any conflict violation might affect that claim.
Background and rules framework
The opinion interpreted Rule 1.9 (duties to former clients; use of information to their disadvantage) together with Rule 1.6 (confidentiality and its self-defense exception), and addressed fee recovery under Rule 1.5 and the quantum meruit rule of Loggins v. Estate of Magid (Model Rules 1.9, 1.6, 1.5).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9
- Model Rule 1.6 (confidentiality; self-defense exception) / Illinois Rule 1.6
- Model Rule 1.5 (fees) / Illinois Rule 1.5; Illinois Rule 1.2
Cases:
- King v. King, 52 Ill. App. 3d 749, 367 N.E.2d 1358 (1977), no fee recovery where lawyer represented adverse interests
- Loggins v. Estate of Magid, 226 Ill. App. 3d 147, 589 N.E.2d 603 (1992), discharged attorney's quantum meruit recovery
Other opinions cited:
- ISBA Opinions Nos. 91-5, 91-11, 91-20 (former-client conflicts and use of confidences)
See also
- ISBA Ethics Op. 98-01: Former Client, Unrelated Matter
- ISBA Ethics Op. 05-01: Cross-Examining a Former Client
- ISBA Ethics Op. 93-18: Related Matter, Aligned Former Client
Source
- Landing page: https://www.isba.org/ethics/opinions/9222
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