Can I sue my former client's trustee on behalf of a trust beneficiary I jointly represented years ago in an unrelated condemnation case?

Plain-English summary

A trust beneficiary sought to retain a lawyer for a breach-of-fiduciary-duty claim against the trustee, seeking an accounting and damages for the trustee's conduct. Twelve years earlier, the lawyer had represented the trust in a condemnation proceeding involving trust real estate, filing an appearance for all defendants including the beneficiary and the trustee, with the trustee's fees paid from trust funds. The trustee, who had his own separate counsel in the condemnation case, agreed the lawyer had never represented him personally, never received confidential communications from him, and was never paid from his personal funds. The question was whether the lawyer's prior appearance for the trustee barred representing the beneficiary against him.

The opinion concluded that, although the trustee may have been only a nominal defendant, the lawyer's appearance on the trustee's behalf created a lawyer-client relationship, so Rule 1.9 (duties to former clients) applied. Under Rule 1.9, the bar attaches only where the two representations are the same or substantially related. Applying the Illinois Supreme Court's adoption in Schwartz v. Cortelloni of the three-part inquiry from LaSalle National Bank v. County of Lake (reconstructing the scope of the former representation, asking whether confidential information would have been conveyed, and asking whether that information is relevant to the present litigation), the opinion concluded the prior representation was limited to the condemnation of the trust's real estate.

Because the beneficiary's claim did not contest the trustee's actions in the condemnation, the opinion concluded that any confidential information the lawyer might have gained about the trust property was not relevant to the new claim, and the two matters were not substantially related. It therefore concluded the lawyer may represent the beneficiary against the trustee.

Currency note

This opinion was issued in 1998, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 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: Did the lawyer's earlier appearance for the trustee create a former-client relationship?

A: Yes. The opinion concluded that, even though the trustee may have been only a nominal defendant, the appearance on his behalf created a lawyer-client relationship, bringing Rule 1.9 into play.

Q: What test decides whether the conflict bars the new representation?

A: The opinion applied the Schwartz / LaSalle three-part substantial-relationship inquiry: reconstruct the scope of the prior representation, ask whether confidential information would have been conveyed, and ask whether that information is relevant to the new litigation.

Q: Why was the new representation permitted?

A: The opinion concluded that the prior representation was limited to the condemnation of the trust's real estate, and because the beneficiary's claim did not challenge the trustee's condemnation conduct, any information the lawyer held was not relevant, so the matters were not substantially related.

Background and rules framework

The opinion interpreted Rule 1.9 (conflict of interest: former client; Model Rule 1.9), including its bar on adverse representation in the same or a substantially related matter, and Rule 1.6 (confidentiality; Model Rule 1.6), applying the Illinois substantial-relationship test from Schwartz v. Cortelloni and LaSalle National Bank v. County of Lake.

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

Cases:

• Schwartz v. Cortelloni, 177 Ill.2d 166, 685 N.E.2d 871 (1997), adopting the three-part substantial-relationship inquiry
• LaSalle National Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983), three-part inquiry
• First National Bank v. St. Charles National Bank, 152 Ill.App.3d 923, 504 N.E.2d 1257 (1987), no substantial relationship found

See also

• ISBA Ethics Op. 22-01: Medical-Malpractice Plaintiff Against a Former-Client Medical Group
• ISBA Ethics Op. 13-02: Representing Business Partners Adverse to a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9801