Can a lawyer represent new clients in the same matter as a former client when the new clients' interests line up with the former client's?

Plain-English summary

A law firm had represented a therapeutic day school in a dispute with a public school district over the educational program for special-education students, including a request (joined by parents) to extend the school day beyond the state-mandated five hours. The matter was settled in part. After the firm ended its relationship with the day school, the day school referred several parents to a partner at the firm, who agreed to represent the parents against the district in administrative hearings over the same extended-school-day issue.

The opinion concluded that Rule 1.9 governs conflicts with a former client and applies only where the current client's interests are "materially adverse" to the former client's. It concluded that no such conflict existed: the parents and the day school were not adverse but aligned, since the children would benefit from the extended day and the day school would receive an increased per diem from the district. The opinion noted that the day school did not object and in fact referred the parents, which would supply consent if consent were required.

The opinion concluded that the possibility of the lawyer using information from the prior representation to the day school's disadvantage was speculative, because the interests of the day school and the parents were virtually aligned and it was difficult to see how such information could be used against the day school. Because no prohibited conflict existed under Rule 1.9, the opinion concluded that the question of any mandatory reporting obligation was moot.

Currency note

This opinion was issued in 1994, 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 (referring to Rules 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 Treat this page as historical context, not current guidance.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 lawyer take on new clients in the same matter as a former client?

A: The opinion concluded this is not improper under Rule 1.9 unless the new clients' interests are materially adverse to the former client's; where the interests align, there is no conflict.

Q: Does using knowledge from the prior representation create a problem?

A: The opinion concluded the concern was speculative here, because it is difficult to use information "to the disadvantage" of the former client when the former and current clients' interests are virtually aligned.

Q: Was there any duty to report a conflict to opposing counsel or the disciplinary commission?

A: No. The opinion concluded that because no prohibited conflict existed under Rule 1.9, the question of mandatory reporting was moot.

Background and rules framework

The opinion interpreted Rule 1.9 (duties to former clients; the bar on representation in the same or a substantially related matter where interests are materially adverse, and the limit on using a former client's confidential information; Model Rule 1.9), together with Rule 1.6 (confidentiality of information; Model Rule 1.6).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9
• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6

See also

• ISBA Ethics Op. 05-01: Representation of a New Client in a Matter Involving a Former Client
• ISBA Ethics Op. 98-01: Representing a Trust Beneficiary Against a Former Client
• ISBA Ethics Op. 93-20: Duty to Report Conflicts of Interest

Source

• Landing page: https://www.isba.org/ethics/opinions/9318