Can a lawyer represent a current client against a former client when the two matters are unrelated and the lawyer holds no confidences usable against the former client?

Plain-English summary

Attorney A handled title matters for a husband and wife, then represented the wife in a divorce against the husband; during that work A received no information about a cattle-farm operation. The wife later terminated A and hired Attorney B. An insurer then asked A to defend its insured (a lab) in an action the wife had brought; A asked B and the wife whether they objected, and both said they did not. After the insurer denied coverage, the lab retained A directly. During discovery, B and then the wife asked A to withdraw, asserting A knew too much about the wife's business affairs.

The opinion applies Rule 1.9, which bars a lawyer who formerly represented a client from representing another in the same or a substantially related matter where interests are materially adverse, unless the former client consents, and from using information relating to the prior representation to the former client's disadvantage except as Rule 1.6 permits or where the information is generally known. It identifies two controlling questions: whether the former representation is substantially related to the present one, and whether the lawyer holds information from the former representation usable against the former client.

Citing Spragins v. Huber Farm Service and Duncan v. Merrill Lynch, the opinion notes the burden in a disqualification motion is on the former client to show the substantial relationship with specificity. The opinion concludes that if both questions are answered no, there is no need to withdraw, and that the case for continuing is even stronger here because consent was given before the new representation began, citing Unified Sewerage Agency v. Jelco. It concludes Attorney A does not have to withdraw.

In practice

Under this opinion, disqualification from a matter adverse to a former client turns on two questions under Rule 1.9: whether the prior and current matters are substantially related, and whether the lawyer holds confidential information usable against the former client. Where both are answered no, the opinion concludes the lawyer need not withdraw, and the former client bears the burden of proving a substantial relationship. The opinion treats a former client's consent given before the new representation as further support for continuing.

Common questions

Q: Can a lawyer take a case against a former client?

A: Per this opinion and Rule 1.9, yes, where the new matter is not substantially related to the prior representation and the lawyer holds no confidences usable against the former client.

Q: Who has to prove there is a conflict?

A: The opinion states that in a disqualification motion the burden is on the former client to delineate the prior representation and show how it connects to the pending matter.

Q: Does a former client's earlier consent matter if they later object?

A: The opinion treats consent given before the new representation as strengthening the case for not withdrawing, citing Unified Sewerage Agency v. Jelco.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.9 (duties to former clients, the analog of Model Rule 1.9), quoting its substantial-relationship and information-use provisions, which cross-reference Rule 1.6 (confidentiality, Model Rule 1.6). It applies the federal substantial-relationship test from Duncan v. Merrill Lynch and Spragins v. Huber Farm Service.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Mississippi Rule 1.9: duties to former clients, including the substantial-relationship test and limits on using prior-representation information.
• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality, cross-referenced in Rule 1.9(b).

Cases:

• Spragins v. Huber Farm Service, Inc., 542 F. Supp. 166 (N.D. Miss. 1982), applying the substantial-relationship rule.
• Duncan v. Merrill Lynch, Pierce, Fenner and Smith, 646 F.2d 1020 (5th Cir. 1981), the substantial-relationship test and the former client's burden.
• Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339 (9th Cir. 1981), no disqualification where prior consent was given.

See also

• MS Bar Ethics Op. 128: Suing a Former Client in an Unrelated Divorce
• MS Bar Ethics Op. 131: Representing a Former Adverse Party
• MS Bar Ethics Op. 218: Joint Defense Conflict, Suing Former Co-Defendants

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/106/
• Original PDF: https://www.msbar.org/media/1021/et_op_106-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 106

OF THE MISSISSIPPI BAR

RENDERED September 13, 1985

AMENDED April 06, 2013

CONFLICT OF INTERESTS--An attorney need not withdraw from representing a present client in a suit against a former client when there is no substantial relationship between the two matters and no secrets of the former clients are known by the attorney to be used against the former clients.

The Ethics Committee of the Mississippi Bar has been asked to render an opinion on the following facts:

Attorney A has handled some title matters for H & W and later undertook to represent W in a divorce action against H. During that representation no information about a cattle farm operation was given to A.

Subsequently W decided A was too good a friend to both her and H. so she picked up her file, terminated A's employment and retained Attorney B to represent her in concluding the divorce.

Later Insurance Co. C sought to retain Attorney A to represent its insured Lab, in an action brought against it by W. Attorney A contacted Attorney B to see if he objected to A's representation of Lab and for permission to speak to B's client W to ask if she objected to his representing Lab whom (W) was suing. B and W each said they did not object.

Later C denied coverage and Lab retained Attorney A to represent it individually.

Various discovery processes were begun but before dispositions were had Attorney B requested Attorney A to withdraw because A "knew too much about the business affairs of W." Later W herself wrote a letter requesting that Attorney A withdraw from representing Lab.

May A continue to represent Lab?

Rule 1.9, MRCP, provides that:

A Lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same or a substantially related matter in which that person's interests are materially adverse to the interest of the former client unless the former client consents after consultation; or

(b) use information relation to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

The major issues determining disqualification in subsequent representation questions are there:

First, does the former representation have a substantial relationship to the matters involved in the present representation? And second, does the attorney have information from the former representation that can be used in the new matter against the former client? See Spragins v. Huber Farm Service, Inc., 542 F. Supp. 166 (ND Miss 1982) which follows the rule in Duncan v. Merrill Lynch, Pierce, Fenner and Smith, 646 F.2d 1020 (5th Cir. 1981).

If those 2 questions can be answered in the negative, there is no need to withdraw. In fact, in disqualification motions, the burden is on the former client to prove the substantial relationship. The Duncan case, supra said:

In applying the substantial relationship test, the court should require Merrill Lynch (former client) to delineate with greater specificity the scope of the prior representation and to demonstrate precisely how the subject matters of the prior representation are connected with the matters embraced within the pending suit. Id. at 1033.

There is even stronger justification, it appears, in the present case, because consent had been given before the subsequent representation was begun. The case of Unified Sewerage Agency v. Jelco, Inc., 646 F. 2d 1339 (9th Cir. 1981) found that since prior consent had been given the law firm would not be disqualified. Attorney A does not have to withdraw.