After the only lawyer who handled a client's matter leaves the firm, can the firm take on a substantially related matter against that former client?
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This page answers the general question as of 1997. 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 represented a husband seeking a reduction in alimony. Preparing for trial, he discovered that an attorney who had left his firm nine years earlier had, ten years earlier, briefly represented the husband's ex-wife in a custody and visitation matter, and that the firm still held a closed file from that representation. Another lawyer in the firm had reviewed the closed file and reported it contained nothing bearing on the alimony issue. The husband, fully informed, had consented. The lawyer asked what else he had to do.
On disclosure, the committee concluded the lawyer ought to tell the ex-wife's current counsel about the situation, because there was a real issue about the lawyer's ability to represent the husband that should be faced at the outset and not concealed.
On the conflict itself, the committee applied the "substantial relationship" test it had long used for representation against a former client, noting that the Supreme Judicial Court had not yet formally adopted the test or the proposed rules. It found the alimony reduction substantially related to the earlier custody and visitation matter, since both arose from the same divorce and the departed attorney would likely have learned relevant financial and confidential information. The decisive question, drawn from Proposed Rule 1.10(b) and the committee's own Opinion 88-4, was whether any lawyer still at the firm held confidential information of the ex-wife material to the new matter, whether from working on the old matter or from talking with the departed attorney. If none did, the firm could proceed even over the ex-wife's objection. The committee added that the lawyer handling the matter should personally examine the closed file, because if it contained a disqualifying confidence it would taint the whole firm regardless of who had read it, citing DR 5-105(D).
Currency note
This opinion was issued in 1997, 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: Did the departure of the handling lawyer let the firm take the adverse matter?
A: The committee concluded it could, applying the standard later codified in Proposed Rule 1.10(b): once the lawyer who represented the former client left, the firm could proceed unless a remaining lawyer held confidential information material to the substantially related matter.
Q: Was the alimony case "substantially related" to the old custody matter?
A: Yes. The committee found both arose from the same divorce, and that the departed attorney handling the custody matter would likely have learned financial and other confidential information relevant to the later alimony dispute.
Q: Did it matter what was in the old closed file?
A: Yes. The committee said the handling lawyer should personally examine the closed file, because if it held a disqualifying confidence of the ex-wife material to the new matter, the entire firm would be disqualified, citing DR 5-105(D).
Background and rules framework
The opinion applied the duties owed to former clients and the imputation of conflicts within a firm, corresponding to Model Rules 1.9 (duties to former clients; substantial-relationship test) and 1.10 (imputation). The committee analyzed the question under the predecessor disciplinary rule DR 5-105(D) and under Proposed Massachusetts Rule of Professional Conduct 1.10(b), which permits a firm to take a matter against a former client of a departed lawyer unless a remaining lawyer holds material confidential information. It relied on its own Opinions 88-2 and 88-4.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.9 / Mass. R. Prof. C. 1.9 (duties to former clients; substantial-relationship test)
- Model Rule 1.10 / Proposed Mass. R. Prof. C. 1.10(b) (imputation; departed-lawyer exception)
- DR 5-105(D) (predecessor imputed-disqualification rule)
Cases:
- Bays v. Theran, 418 Mass. 685 (1994) (SJC had not yet adopted the substantial-relationship test)
- Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975)
- Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186 (7th Cir. 1979) (en banc)
Other opinions cited:
- MBA Opinion 88-2 (use of the substantial-relationship test)
- MBA Opinion 88-4 (departing lawyer with no confidences may take an adverse matter)
See also
- MA Bar Ethics Op. 99-3: Testifying as an expert against a former client
- MA Bar Ethics Op. 03-4: Taking a matter against a former client
Source
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