Can a lawyer who once won a judgment against a person later represent that same person in an unrelated case, if both the former client and the new client consent?

Plain-English summary

A lawyer had represented Mr. A against Ms. B and obtained a judgment against Ms. B in a collection suit on a promissory note. Later, Ms. B asked the same lawyer to represent her in a totally unrelated action against Company C. The lawyer disclosed his prior representation of Mr. A to Ms. B, and she consented; he also disclosed the new request to Mr. A, and Mr. A consented. The question was whether the lawyer could represent Ms. B against Company C given both consents.

The opinion analyzed the question under Rule 1.9, which bars a lawyer from representing another in the same or a substantially related matter materially adverse to a former client absent consent, and from using information relating to the former representation to the former client's disadvantage. Citing Opinion No. 90, the Committee restated that a lawyer need not disqualify himself as to a former client unless the terminated matter is substantially related to the new matter, or unless he received privileged information that might be used against the former client in the new matter.

Because the new matter was totally unrelated to the prior representation and the lawyer had obtained informed consent from both the former client and the prospective client, the opinion concluded the lawyer would not violate Rule 1.9, provided the lawyer can adequately and competently represent the prospective client, exercising professional judgment solely for her benefit and free of compromising influences or prior prejudices.

In practice

Under this opinion, a Mississippi lawyer may take on a former opposing party as a client in an unrelated matter where there is no substantial relationship between the two matters and no risk of using the former client's privileged information against him, and where both the former client and the new client give informed consent. The opinion frames the decisive factors as Rule 1.9's substantial-relationship and confidentiality tests (echoing Opinion No. 90), plus the lawyer's own assessment that he can competently represent the new client free of compromising influences.

Common questions

Q: Can I represent someone I previously sued or obtained a judgment against?

A: Per this opinion, yes, where the new matter is totally unrelated, not prejudicial to a former client, and both the former client and the new client give informed consent.

Q: What makes a former-client conflict disqualifying?

A: The opinion, following Opinion No. 90, says disqualification turns on whether the prior matter is substantially related to the new one, or whether the lawyer received privileged information that could be used against the former client.

Q: Is the new client's consent enough by itself?

A: No. The opinion describes the lawyer obtaining informed consent from both the former client (Mr. A) and the prospective client (Ms. B), and also requires the lawyer to determine he can competently represent the new client free of prior prejudices.

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), which keys disqualification to a "same or substantially related matter" with materially adverse interests, and bars using information relating to the prior representation to the former client's disadvantage except as Rule 1.6 (confidentiality) would permit. It reads Rule 1.9 together with prior Opinion No. 90's substantial-relationship and privileged-information framework.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Mississippi Rule 1.9: duties to former clients (substantial-relationship test; bar on using former-client information).
• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality of information (referenced within Rule 1.9(b)).

Other opinions cited:

• Mississippi Ethics Opinion No. 90: a lawyer need not disqualify himself as to a former client absent a substantial relationship to the new matter or receipt of privileged information usable against the former client.

See also

• MS Bar Ethics Op. 166: No Duty to a Former Client
• MS Bar Ethics Op. 242: Conflicts in Arbitration
• MS Bar Ethics Op. 231: Taking Sides Among Partners

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/131/
• Original PDF: https://www.msbar.org/media/1034/et_op_131-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 131

OF THE MISSISSIPPI BAR

RENDERED December 05, 1986

AMENDED April 06, 2013

CONFLICT OF INTEREST - There is no conflict of interest per se for a lawyer to accept employment to represent a former adverse party if the anticipated representation is not prejudicial to a former client of the prospective client.

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

In the past the lawyer represented Mr. A against Ms. B and obtained a judgment against Ms. B in a collection suit. Subsequently, the lawyer has been requested to represent Ms. B in a totally unrelated action against Company C. The lawyer advised Ms. B of the fact that he had represented Mr. A against her in the aforementioned suit on the Promissory Note, however Ms. B consented to the lawyer representing her. Additionally, the lawyer advised Mr. A of the fact that he had been approached by Ms. B to represent her in an unrelated matter and Mr. A consented to the representation by the lawyer of Ms. B in the unrelated cause of action.

The ethical question presented is can the lawyer represent Ms. B in an action against Company C notwithstanding the written consent of Mr. A and Ms. B.

Rule 1.9, of the Mississippi Rules of Professional Conduct (MRPC), 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 interest are materially adverse to the interests of the former client unless the former client consents after consultation; or

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

Opinion 90 of The Mississippi Bar states quite clearly that a lawyer need not disqualify himself in a matter concerning a former client unless the terminated employment has some substantial relationship to the new matter or unless he received privileged information that might be used in the new matter against the former client.

It must be stressed that the factual situation presented by the lawyer clearly reflects that his representation of the former adverse party would be in a matter totally unrelated to his representation of a former client. Further, the lawyer has obtained the informed consent of the former client and the prospective client concerning the anticipated representation.

Therefore, in view of all of the above, the lawyer is required to determine if he can adequately and competently represent the prospective client in view of the fact that this individual had previously been an adverse party in a matter in which the lawyer was involved.

If the lawyer and the prospective client determine that the lawyer will exercise his professional judgment within the bounds of the law, solely for the benefit of the prospective client and will be free of compromising influences and any possible prior prejudices against the prospective client, then this Committee determines that the lawyer will not be in conflict with Rule 1.9, MRPC.