Can a lawyer who left a firm sue the firm's former client when she never worked on that client's matter and holds no confidences?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer whose work was mostly real estate closings had been employed at a seven-branch firm. About a year before she joined, a lawyer at a different branch had represented a seller in the sale of a restaurant (the buyer had no counsel). She never acquired any information about that seller or transaction while at the firm. Now a solo practitioner, she was asked to represent the buyer in a breach-of-contract suit against the seller arising from that sale. The seller's former lawyer, now the escrow agent, asserted a conflict barred her. She asked the committee.
The committee started from the substantial-relationship test it consistently applies to representation against a former client: representation is barred if the new matter is substantially related to the prior representation. The lawyer who originally handled the seller's sale would be disqualified from now opposing the seller in a dispute arising from it, and under DR 5-105(D) so would all his current partners and associates. But DR 5-105(D) does not address a lawyer's situation after she leaves the firm, especially where she had left before the new client came, never worked on the seller's matter, and holds no confidences or secrets of the seller.
In that situation, the committee advised that the lawyer may represent the buyer. It followed the modern trend, led by Silver Chrysler Plymouth v. Chrysler Motors, which asks whether the departing lawyer personally engaged in a substantially related representation or received relevant confidences, rather than imputing the old firm's disqualification to her wherever she goes. That rule, codified in proposed Model Rule 1.10(b), balances protecting client confidences and loyalty against new clients' access to chosen counsel and lawyer mobility. The committee added one qualification: a client should keep the benefit of imputed disqualification where the circumstances within the firm gave it a reasonable fear that the departing lawyer had acquired its confidences, even if it cannot rebut her denial. Here, because the seller's work was done before the lawyer joined and in a different branch, both the assumption that she held no confidences and the conclusion that the seller could not reasonably fear otherwise were supported, so she could represent the buyer.
Currency note
This opinion was issued in 1988, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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, deadline, or requirement mentioned here.
Common questions
Q: Does a lawyer carry her old firm's conflicts with her when she leaves?
A: Not automatically. The committee followed the modern rule (Silver Chrysler Plymouth, codified in proposed Model Rule 1.10(b)): the question is whether the departing lawyer personally handled a substantially related matter or holds relevant confidences, not whether the firm was disqualified.
Q: When can the departed lawyer take the matter against the former client?
A: When she holds no relevant confidences or secrets of that client and the client could not reasonably fear she acquired them. Here, the work predated her tenure and occurred in a different branch.
Q: When does the former client still get the benefit of imputed disqualification?
A: The committee said where the firm's circumstances gave the client a reasonable fear the lawyer acquired its confidences, even if the client cannot rebut the lawyer's denial of having received them.
Background and rules framework
The opinion applied the substantial-relationship test for duties to a former client and DR 5-105(D), the Massachusetts imputed-disqualification rule. Those correspond today to Model Rule 1.9 (duties to former clients) and Model Rule 1.10, including the departed-lawyer provision now reflected in Model Rule 1.10(b). The committee noted the Supreme Judicial Court had not yet committed to the substantial-relationship test (Masiello v. Perini Corp.).
Citations and references
Rules of Professional Conduct:
- DR 5-105(D) / Model Rule 1.10 (imputed disqualification; departed-lawyer rule in 1.10(b))
- Model Rule 1.9 (duties to former clients; substantial-relationship test)
Cases:
- Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975) (departing lawyer's actual involvement controls; followed)
- Freeman v. Chicago Musical Instruments Co., 689 F.2d 715 (7th Cir. 1982); Gas-A-Tron of Arizona v. Union Oil Co., 534 F.2d 1322 (9th Cir. 1976); Masiello v. Perini Corp., 394 Mass. 842 (1985)
Other opinions cited:
- MBA Opinion 88-2 (substantial-relationship test reaffirmed)
See also
Source
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