Could a firm litigate against a broker formerly represented by a newly joined partner in an unrelated matter?

Plain-English summary

A partner had represented a real-estate broker before joining the firm. The firm later represented a buyer in a related contract case where the broker was a witness and might become a defendant.

The opinion said the firm must examine whether the partner learned information during the former representation that could harm the broker in the new case, regardless of the source of that information. If so, a conflict existed under Rule 4-1.9(b). The broker would need to waive it, and the current client had to be informed.

Currency note

This opinion was issued in 2000, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Did the broker’s status as witness rather than defendant end the inquiry?

A: No. The opinion required the Rule 4-1.9(b) analysis either way.

Q: Whose waiver would matter if there was a conflict?

A: The broker’s; the opinion also required informing the current client.

Background and rules framework

The opinion applied Rule 4-1.9(b) to information acquired during a former representation by a partner who changed firms.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.9

See also

• Missouri Informal Op. 20030007: Lateral Confidential Information

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000237/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney is a member of Firm. One of the partners, X, joined Firm several months ago. X has not represented E since joining Firm. Attorney commenced representation of a claim involving breach of contract concerning the sale of real estate on behalf of B against defendant D. In the course of completing discovery in that matter, Attorney sought to take the deposition of the real estate broker who represented D. E was the broker. Prior to joining Firm, X represented E in a completely unrelated matter, which concluded a couple of years ago. At some point, Attorney may find it necessary to amend the petition to include E. Attorney has concluded that E’s involvement as a witness presents no violation of the ethical rules. Attorney also believes that given the pending development in which E may be added as a defendant, likewise presents no violation based on the fact pattern. B has waived any conflict in writing. Is there a conflict?

ANSWER: Regardless of whether E is added as a defendant or continues as a witness, Attorney must analyze this situation under Rule 4–1.9(b). If X obtained any information in the course of the previous representation of E that could be used to E’s detriment in the current proceeding, Attorney’s firm has a conflict. The information that could create a conflict could have come from any source, if it came to X in the course of representing E. If Attorney’s firm has a conflict, E would be the one to waive the conflict, although it would be necessary to inform B of the situation.