Can a lawyer use what was learned representing a former client to help a new client pursue claims against that former client, and what should the lawyer do if subpoenaed for the information?

Plain-English summary

A lawyer had represented a business broker (and clients the broker referred) and later came to believe the broker had been "running a scam." Two prospective clients who said they had paid the broker money and received nothing asked the lawyer about civil and criminal claims against the broker. The lawyer asked what could be disclosed to the prospective clients and what could be disclosed if the lawyer were subpoenaed by a government body investigating the broker.

The Committee read MRPC 1.9, which provides that the duty to a former client continues after the relationship ends: a lawyer may not represent a person in a substantially related matter materially adverse to a former client without consent, and may not use or reveal information relating to the former representation except as Rules 1.6 or 3.3 permit, or when it has become generally known. It concluded that if the information came to the lawyer in representing the broker or the referred clients, the lawyer could not use or disclose those confidences or secrets, or advise the prospective clients about actions against the broker, without consent.

The Committee then considered the discretionary disclosure exceptions in MRPC 1.6(c)(3) (to rectify the consequences of a client's illegal or fraudulent act furthered by the lawyer's services) and 1.6(c)(4) (a client's intention to commit a crime). It concluded the facts did not show the lawyer's services had been used to further the broker's acts, nor that the broker had revealed an intention to commit a crime, so the lawyer had no discretion to disclose. On the subpoena, it concluded the lawyer should appear and assert the privilege, which is the client's and cannot be waived by the lawyer, and await the court's ruling; the lawyer may reveal confidences only as MRPC 1.6(c)(5) allows to defend against a charge of wrongful conduct.

Currency note

This opinion was issued in 1991 and interprets the Michigan Rules of Professional Conduct as they then stood. MRPC 1.6 and 1.9 have since been amended, and 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 Treat this page as historical context, not current guidance.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 Michigan lawyer use what was learned from a former client to help a new client sue that former client?

A: No. The opinion concluded that, without the former client's consent, the lawyer may not use or reveal the former client's confidences or secrets to help a prospective client against them, and may not advise the prospective client about claims against the former client.

Q: Does the lawyer's belief that the former client committed wrongdoing change that?

A: The opinion concluded it does not, on these facts. The disclosure exceptions in MRPC 1.6(c)(3) and (4) require that the lawyer's services were used to further the wrongdoing or that the client revealed an intent to commit a crime, neither of which was shown.

Q: What should the lawyer do when served a subpoena for client information?

A: The opinion concluded the lawyer should appear, assert the lawyer-client privilege, and await the judge's ruling. The privilege belongs to the client and cannot be waived by the lawyer.

Background and rules framework

The opinion interpreted MRPC 1.9 / Model Rule 1.9 (duties to former clients, including the bar on using or revealing information relating to the former representation) and MRPC 1.6 / Model Rule 1.6 (confidences and secrets, including the discretionary disclosure exceptions in Michigan's 1.6(c)). It applied these to both the broker and the clients the broker had referred, treating each as a former client.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / MRPC 1.9 (duties to former clients)
• MR 1.6 / MRPC 1.6 (confidences and secrets; disclosure exceptions in 1.6(c)(3), (4), (5))

Other opinions cited:

• CI-389, CI-665, CI-702, CI-1188: asserting the privilege and awaiting a ruling on a subpoena

See also

• ABA Formal Op. 473: Responding to a Subpoena for Client Information
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=976&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-106

November 25, 1991

SYLLABUS

In the absence of a client's fraud or illegal act in furtherance of which the lawyer's services have been used, or the client's intention to commit a crime, a lawyer may not disclose a confidence or secret of a former client in order to assist a prospective client in a legal matter against the former client, unless the former client consents.

Upon receipt of a subpoena for privileged information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose.

References: MRPC 1.6, 1.9; CI-389, CI-665, CI-702, CI-1188.

TEXT

A lawyer was contacted by a person whose occupation consisted of brokering businesses. The broker referred a number of clients to the lawyer and subsequently personally sought the legal services of the lawyer, primarily in the defense of certain collection lawsuits brought against the broker and the broker's company. The lawyer and the broker also cooperated in work on behalf of mutual clients of both. Within six months the relationship between the lawyer and the broker began to deteriorate, apparently because of difficulties the lawyer had in attempting to communicate with the broker, and the relationship was terminated.

During the course of the representation of the broker, the lawyer received a number of complaints from other lawyers that the broker was "running a scam." Although the lawyer at first did not believe the charges and denied them on the broker's behalf, the lawyer now believes the charges were and are true.

The lawyer has been approached by two prospective clients who are primarily interested in assistance with debt consolidation and possible bankruptcy. Both prospective clients have also indicated that they paid "a substantial amount of money" to the broker and that neither received anything in return. Both have sought the lawyer's opinion concerning civil claims and criminal charges against the broker.

The lawyer asks (1) what, if anything, may the lawyer disclose to the prospective clients regarding conduct of the broker which the lawyer now believes to be clearly illegal, and (2) what, if anything, may the lawyer disclose, if the lawyer were subpoenaed by a governmental body investigating the improper conduct of the broker.

MRPC 1.9(a) and (c) state:

"(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

". . .

"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or

"(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."

If the information the lawyer is contemplating to disclose came to the lawyer either in the lawyer's representation of the broker, or in the lawyer's representation of the clients referred to the lawyer by the broker, the lawyer's duty to a former client continues even after the lawyer's relationship with the former client ceases, and the lawyer may not use or disclose confidences or secrets of the former client (whether the former client is the broker or a client referred by the broker) without consent. Nor may the lawyer represent (i.e., give advice to) prospective clients regarding actions that may be taken against the broker without the broker's consent.

MRPC 1.6(c)(3) and (4) state:

"(c) A lawyer may reveal:

". . ."(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; . . . ."

MRPC 1.6(c)(3) permits disclosure of confidences and secrets if necessary to rectify the consequence of "illegal or fraudulent acts" if the lawyer's services have been utilized "in the furtherance" of those acts. MRPC 1.6(c)(4) permits the disclosure of "the intention" of a client to commit a crime and "the information necessary to prevent the crime."

These facts do not demonstrate that the lawyer's services have been used to "further" illegal or fraudulent acts by the broker. Furthermore, there is no showing that the broker revealed to the lawyer an intention to commit a crime or that the lawyer has any information to prevent the commission of such a crime. We consequently find that the lawyer in this case has no discretion to disclose the confidences or secrets pursuant to MRPC 1.6(c).

Upon receipt of a subpoena for information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose. CI-389, CI-665, CI-702, CI-1188. The lawyer-client privilege is held by the client and cannot be waived by the lawyer. Pursuant to MRPC 1.6(c)(5), the lawyer may reveal confidences and secrets necessary to defend the lawyer against a charge of wrongful conduct.