Can a lawyer who represents employees take on the employer as a client in unrelated matters, drop a client to do so, or later sue a former client?

Plain-English summary

A lawyer who had represented workers' compensation claimants was approached by employers, including some who employed the lawyer's current or former claimant clients, to represent the employers in workers' compensation matters. The Board answered three questions and withdrew Adv. Op. 1988-024.

On the first question, the Board concluded that taking on the employer creates a conflict under Prof.Cond.R. 1.7. The representation would be directly adverse because, in litigation, representing one client is directly adverse when the lawyer acts as an advocate against a person the lawyer represents in another matter, even a wholly unrelated one (Prof.Cond.R. 1.7(a)(1), cmt. [11]). There is also a substantial risk of a material-limitation conflict (Prof.Cond.R. 1.7(a)(2)): the lawyer's interest in a potentially more lucrative employer client could lead to a deferential rather than thorough cross-examination of the employer's representatives. Because the conflict is not one barred outright by Prof.Cond.R. 1.7(c), the lawyer must either decline or obtain each affected client's informed consent, confirmed in writing, after determining the lawyer can provide competent and diligent representation to each (Prof.Cond.R. 1.7(b)). The Board recommended this representation be avoided given the competing obligations.

On question 1(a), the Board concluded the lawyer may not withdraw from the current claimant clients merely to take on the employer. It applied the "hot potato" doctrine, under which a firm may not drop a client to undertake a new representation adverse to that client, even in an unrelated matter (citing D.C. Ethics Op. 272 and Ohio cases such as Henry Filters and Sarbey), and noted the "thrust-upon" exception did not apply because the lawyer knew of the conflict at the outset. The Board advised the lawyer should not withdraw and should refrain from representing the employer until the current clients' pending claims are resolved. On question 2, the Board applied Prof.Cond.R. 1.9: absent informed written consent, the lawyer may not represent the employer against a former client in the same or a substantially related matter where the former client's interests are materially adverse, but may do so in an unrelated matter (illustrated by the example of a collections action against a former employee). On question 3, the Board concluded that recommending a specific lawyer or list of lawyers in good faith does not violate the duty of loyalty to a current client, drawing on Prof.Cond.R. 4.3, and that a lawyer should not refer a client to someone the lawyer believes incompetent or dishonest.

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as they stood at the time, a lawyer who represents current clients with claims pending against an employer may not represent that employer in unrelated matters absent each affected client's informed written consent, because the clients are directly adverse and a material-limitation conflict arises (Prof.Cond.R. 1.7). Per the opinion, the lawyer may not withdraw from a current client solely to take on the adverse party, even in an unrelated matter, under the "hot potato" doctrine (Prof.Cond.R. 1.16). The opinion concludes that, absent informed written consent, a lawyer may not represent a former adverse party against a former client in the same or a substantially related matter (Prof.Cond.R. 1.9), but may do so in an unrelated matter, and that a conflicted lawyer may recommend other counsel in good faith.

Common questions

Q: Can a lawyer represent an employer in unrelated matters while representing employees suing that employer?

A: The opinion concluded not without each affected client's informed written consent; representing the employer makes the lawyer's clients directly adverse and raises a material-limitation conflict (Prof.Cond.R. 1.7(a)(1)-(2)), and the Board recommended avoiding the representation.

Q: Can a lawyer drop a current client in order to take on the adverse party?

A: The opinion concluded no; under the "hot potato" doctrine a lawyer may not withdraw from a current client merely to undertake a representation adverse to that client, even in an unrelated matter, where the lawyer knew of the conflict at the outset (Prof.Cond.R. 1.16).

Q: Can a lawyer later sue a former client on behalf of a former adverse party?

A: The opinion concluded that, absent informed written consent, a lawyer may not represent a former adverse party against a former client in the same or a substantially related matter where the former client's interests are materially adverse (Prof.Cond.R. 1.9(a)), but may do so in an unrelated matter.

Q: Can a lawyer who must decline due to a conflict refer the person to another lawyer?

A: The opinion concluded yes; recommending a specific lawyer or list of lawyers in good faith does not violate the duty of loyalty to a current client, and a lawyer should not refer a person to someone the lawyer believes to be incompetent or dishonest.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 1.7 (concurrent conflicts of interest, including direct adversity and material-limitation conflicts and the informed-consent requirements of 1.7(b)-(c); Model Rule 1.7), 1.9 (duties to former clients, including the "substantially related" standard in 1.0(n); Model Rule 1.9), 1.16 (declining and withdrawing from representation; Model Rule 1.16), and 4.3 (dealing with unrepresented persons; Model Rule 4.3), along with the loyalty principles in the comments to Prof.Cond.R. 1.7 and the Scope.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.7 (concurrent conflicts), incl. 1.7(a)(1)-(2), (b), (c) and cmts. [1], [2], [4], [11], [20] (Model Rule 1.7)
• Ohio Prof.Cond.R. 1.9 (duties to former clients), incl. 1.9(a), (c)(1)-(2) and cmt. [1] (Model Rule 1.9)
• Ohio Prof.Cond.R. 1.16 (declining or terminating representation), incl. 1.16(b)(1)-(9), (c)-(e) and cmts. [1], [8A] (Model Rule 1.16)
• Ohio Prof.Cond.R. 4.3 (dealing with unrepresented persons) (Model Rule 4.3)
• Ohio Prof.Cond.R. 1.0(f), (n) (definitions of informed consent and substantially related)

Cases:

• Henry Filters, Inc. v. Peabody Barnes Inc., 82 Ohio App.3d 255, 611 N.E.2d 873 (6th Dist. Wood 1992), the "hot potato" doctrine
• Sarbey v. Nat'l City Bank, 66 Ohio App.3d 1, 583 N.E.2d 392 (9th Dist. Summit 1990)
• Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir. 1973), continuing duty of confidentiality to former clients
• W. Wagner & G. Wagner Co., L.P.A. v. Block, 107 Ohio App.3d 603, 669 N.E.2d 727 (6th Dist. Erie 1995), withdrawal without just cause as breach of contract
• Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121 (N.D. Ohio 1990), the "thrust-upon" exception

Other opinions cited:

• D.C. Ethics Op. 272 (1997): the "hot potato" doctrine
• ABA Formal Op. 92-367: lawyer cross-examining a current client as an adverse witness
• Ohio BPC Adv. Ops. 2013-4 and 2016-12: conflicts in cross-examination and personal-interest conflicts

See also

• Ohio BPC Op. 1988-024: Withdrawal From a Former Client and Fee on Withdrawal (withdrawn by this opinion)
• Ohio BPC Op. 2013-004: Cross-Examination of a Former Criminal Client in an Unrelated Matter
• Ohio BPC Op. 2016-012: Conflict When a Lawyer's Spouse Works for the Arresting Agency
• Ohio BPC Op. 1989-013: Representing a Client Against a Former Client; Imputation
• RI Ethics Advisory Panel Op. 2000-1: Conflict of Interest After Withdrawing to Represent a Client's Adversary

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2019/02/Adv.-Op.-2019-1-Final.pdf

Original opinion text

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

OPINION 2019-1
Issued February 8, 2019
Withdraws 1988-024

             Representation of Adverse Party in Unrelated Matters

SYLLABUS: Absent informed consent, a lawyer may not undertake representation of an
adverse party in an unrelated matter when the lawyer represents current clients with
claims pending against the adverse party. A lawyer may not withdraw from the
representation of a current client in order to undertake representation of an adverse
party, even if the matters are unrelated. Absent informed consent, a lawyer may not
represent a former adverse party in a new matter against a former client if the new matter
is the same or a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client. A lawyer who is unable to undertake
representation of a prospective client due to a conflict may recommend another lawyer
or list of lawyers, so long as the lawyer does so in good faith.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. JOHN W. WISE RICHARD A. DOVE
CHAIR DIRECTOR
PATRICIA A WISE D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                   OPINION 2019-1
                                Issued February 8, 2019
                                  Withdraws 1988-024

               Representation of Adverse Party in Unrelated Matters

SYLLABUS: Absent informed consent, a lawyer may not undertake representation of an
adverse party in an unrelated matter when the lawyer represents current clients with
claims pending against the adverse party. A lawyer may not withdraw from the
representation of a current client in order to undertake representation of an adverse
party, even if the matters are unrelated. Absent informed consent, a lawyer may not
represent a former adverse party in a new matter against a former client if the new matter
is the same or a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client. A lawyer who is unable to undertake
representation of a prospective client due to a conflict may recommend another lawyer
or list of lawyers, so long as the lawyer does so in good faith.

APPLICABLE RULES: Prof.Cond.R. 1.0, 1.1, 1.3, 1.7, 1.9, 1.16, 4.3

QUESTIONS PRESENTED: A lawyer has represented claimants in workers’
compensation cases. Recently, the lawyer was approached by employers who wish to
hire the lawyer to represent them in workers’ compensation matters. One or more of the
lawyer’s prior clients (claimants) are employees of the same employers who now wish
for the lawyer to represent the employers. The lawyer also has current clients with
pending workers’ compensation matters.

   1. May a lawyer who currently represents clients (claimants) in workers’
       compensation claims pending against an employer undertake representation

Op. 2019-1 2

      of the current clients’ employer in workers’ compensation matters unrelated to
      the clients?


           a. May the lawyer withdraw from representation of current clients in order
              to undertake representation of the current clients’ employer in unrelated
              workers’ compensation matters?


   2. May a lawyer represent an employer in a new matter against former clients
      whom the lawyer has represented as claimants in the past?


   3. May a lawyer who is unable to represent a prospective client in matters against
      a former or current client refer the prospective client to another lawyer?

OPINION:

Question (1)

   A lawyer’s acceptance of representation of a client creates a conflict of interest if

the representation of that client will be directly adverse to another current client or if
there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out
an appropriate course of action for that client will be materially limited by the lawyer’s
responsibilities to another client, a former client, a third person, or by the lawyer’s own
personal interest. Prof.Cond.R. 1.7(a)(1)-(2). Because the principles of loyalty and
independent judgment are fundamental to the client-lawyer relationship, neither the
interests of other clients nor the lawyer’s personal interest should be permitted to dilute
the lawyer’s loyalty to the client. Prof.Cond.R. 1.7, cmt. [1].

   The first consideration is whether the lawyer’s acceptance of the prospective client

will result in the direct adversity between the lawyer’s prospective client and current
clients. In litigation, the representation of one client is directly adverse when one of the
clients is asserting a claim against another client of the lawyer. Prof.Cond.R. 1.7, cmt.
[11]. Furthermore, a lawyer may not act as an advocate in one proceeding against a
person (or an entity) the lawyer represents in some other matter, even though the matters
are wholly unrelated. Id. Applying the language of Comment [11] to this question, the
lawyer may not act as an advocate for the claimants by arguing they are entitled to
Op. 2019-1 3

workers’ compensation benefits in proceedings against their employer when the
employer is also a client of the lawyer in unrelated matters. If the lawyer undertakes the
representation of the current client’s employer, then the lawyer’s current clients are
directly adverse and a prohibited conflict exists. Prof.Cond.R. 1.7(a)(1).

      The second consideration is whether there is a substantial risk that the lawyer’s

ability to consider, recommend, or carry out an appropriate course of action for a client
will be materially limited by the lawyer’s responsibilities to another client or by the
lawyer’s own personal interest. When the lawyer is faced with the proposition of
developing and maintaining a client-lawyer relationship with a potentially more
lucrative client, the lawyer must consider if his or her personal interest in developing that
relationship would impact the lawyer’s ability to carry out the duties owed to the current
clients. For example, the lawyer must consider whether he or she will be able to conduct
a competent and thorough cross examination of a representative constituent of the
employer due to his or her desire to build and maintain a relationship with a potentially
more profitable or long-term client. The potential for compromise of the lawyer’s duty
of loyalty to the current clients is present in this situation if the lawyer conducts a
deferential, rather than thorough, cross-examination of a constituent of the employer due
to the lawyer’s desire to remain in the employer’s good graces.1 The lawyer’s own interest
cannot not be permitted to have an adverse effect on his other current clients.
Prof.Cond.R. 1.7, cmt. [20]. The Board is of the view that in such a situation there is a
substantial risk of a material limitation conflict pursuant to Prof.Cond.R. 1.7(a)(2).

      When a lawyer is faced with a conflict the lawyer must next determine if the

representation is barred by either criteria in Prof.Cond.R. 1.7(c). Prof.Cond.R. 1.7(c)(1)-
(2) prohibits a lawyer from undertaking representation that is prohibited by law or
involves the assertion of a claim by one client against another in the same proceeding.
Here, there is no indication that the representation is prohibited by law, and the
representation does not involve the simultaneous representation of clients related to the
assertion of a claim by one client against another client represented by the lawyer in the
same proceeding. As a result, Prof.Cond.R. 1.7(c) does not preclude the representation.

      The lawyer must now either decline the representation due to the conflict or

comply with the additional requirements of Prof.Cond.R. 1.7(b). Prof.Cond.R. 1.7, cmt.

1
See Adv. Op. 2013-4 (citing ABA Formal Op. 92-367 (1992)).
Op. 2019-1 4

[2] and Prof.Cond.R. 1.7, cmt. [4]. The lawyer must evaluate whether the lawyer can
provide competent and diligent representation to each affected client, and if so, each
affected client must give informed consent, confirmed in writing. Prof.Cond.R. 1.7(b)(1)-
(2). As discussed above, a relevant consideration remains as to whether the lawyer in this
situation will alter his or her approach to the employer in order to remain in the
employer’s good graces. Again, although the Rules of Professional Conduct permit a
lawyer, through informed consent, to accept or continue representation when faced with
a material limitation conflict, the Board recommends that this type of representation
under the circumstances posed by the question be avoided due to the conflicting
professional and personal obligations noted in this opinion and the fact that these
competing obligations likely prevent the competent and diligent representation of a
client. See Adv. Op. 2016-12.

   If after assessing the lawyer’s relationship with the employer, claimant, and the

matters at issue in the pending claims, the lawyer determines, in the exercise of his or her
professional judgment, that he or she can provide competent and diligent representation
to each affected client, the lawyer must seek informed written consent from each affected
client to proceed. Prof.Cond.R. 1.7(b)(2). In order to obtain informed consent the lawyer
must communicate to each affected client “adequate information and explanation of the
material risks of representation and any reasonably available alternatives to the proposed
course of conduct.” Prof.Cond.R. 1.0(f). Obtaining informed, written consent from each
affected client is the only way the lawyer in this situation would be able to undertake
representation of the employer.

Question (1)(a)

   Faced with a conflict and in the absence of informed consent, the question becomes

whether the lawyer may withdraw from representation of the current client claimants
solely to undertake representation of the employer in unrelated workers’ compensation
matters. A lawyer cannot accept representation in a matter unless it can be performed,
among other things, without an improper conflict of interest. Further, a lawyer is
obligated to carry to conclusion all matters undertaken for a client, unless the lawyer-
client relationship is terminated as provided in Prof.Cond.R. 1.16. Prof.Cond.R. 1.16, cmt.
[1] and Prof.Cond.R. 1.4, cmt. [4]. The decision of a lawyer to withdraw from
representation should be made only on the basis of compelling circumstances and if any
of eight enumerated situations are applicable. Prof.Cond.R. 1.16, cmt. [8A] and
Op. 2019-1 5

Prof.Cond.R. 1.16(b)(1)-(8). An additional “catch-all” subsection also permits withdrawal
if “other good cause for withdrawal exists.”2 Prof.Cond.R. 1.16(b)(9).

     The Board recognizes arguments can be made that withdrawal under these

circumstances may be permitted pursuant to Prof.Cond.R. 1.16 if it can be accomplished
without any material adverse effects on the interests of the clients. However, courts in
Ohio, as well as other jurisdictions, have historically declined to uphold a practice, also
referred to as the “hot potato” doctrine, of a lawyer withdrawing from representation of
a less favorable client so that the lawyer or law firm may proceed with the less stringent
conflict analysis required for former clients.3 As a result, a broad proposition has
developed that “a law firm may not withdraw from a representation where the purpose
is to undertake a new representation adverse to the first client, even in an unrelated
matter, and apparently even if the withdrawal would not have an adverse impact on the
client.” D.C. Ethics Op. 272 (1997)(citing Hazard & Hodes, The Law of Lawyering: A
Handbook on the Model Rules of Professional Conduct p. 480.1 (1996)).4

     The Board acknowledges that the cases discussing the “hot potato” concept relate

to various different areas, including motions for disqualification, and typically contain
fact patterns that differ from the facts presented in this question. Commonly, a law firm’s
current client has already initiated or desires to initiate a lawsuit against another current
client in a wholly unrelated matter or a conflict is created due to a merger or acquisition.
Despite the slightly differing facts here, the Board adopts the concept that withdrawing
from the representation of one client in order to take on the representation of another is
not ethically appropriate.5 In reaching this conclusion, the Board notes that the lawyer

2
In order to withdraw, a lawyer is also required to obtain permission from a tribunal if required, take all
steps practicable to protect the client’s interest, and promptly refund any part of the fee paid in advance.
Client consent is no longer required. Prof.Cond.R. 1.16(c)-(e).
3 See, e.g., Henry Filters, Inc. v. Peabody Barnes Inc., 82 Ohio App.3d 255, 261, 611 N.E.2d 873 (Wood

1992)(citing Sarbey v. Nat’l City Bank, 66 Ohio App.3d 1, 583 N.E.2d 392 (Summit 1990)); Unified Sewerage
Agency v. Jelco, Inc., 646 F.2d 1339, 1345 n.4 (9 th Cir. 1981); Picker Int’l Inc. v. Varian Assocs. Inc., 670 F. Sup.
1363, 1365 (N.D. Ohio 1987); Snapping Shoals Elec. Membership Corp. v. RLI Ins. Corp., 2006 WL 1877078 (N.D.
Ga. July 5, 2006); Pioneer- Standard Elecs., Inc. v. Cap Gemini Am., Inc. , 2002 WL 553460 (N.D. Ohio Mar. 11,
2002); Universal City Studios, Inc. v. Reimerdes, 98 F. Supp. 2d 449 (S.D. N.Y. 2000).
4
It should be noted that D.C. Ethics Opinion 272 (1996) reached a conclusion contrary to the conclusion in
this Advisory Opinion based on different facts and because the D.C. Rules of Professional Conduct vary
from the Ohio Rules of Professional Conduct.
5
Withdrawn Adv. Op. 1988-24 contained a question about whether a lawyer may request fees for work
completed prior to withdrawal. The Board has declined to address that question in the body of this opinion
Op. 2019-1 6

requesting the opinion is aware, at the onset of representation, that a conflict will occur if
he or she accepts representation. Therefore, there can be no claim that the conflict
occurred as a result of an unforeseeable development and that the “thrust-upon”
exception should apply.6 As stated in the Scope, “[t]he Ohio Rules of Professional
Conduct are rules of reason. They should be interpreted with reference to the purposes
of legal representation and of the law itself.” Prof.Cond.R., Scope [14]. Furthermore, “the
rules do not exhaust the moral and ethical considerations that should inform a lawyer
…” Prof.Cond.R., Scope [16].

    As a result of the above-referenced review of the Scope, rules, and comments, the

Board cautions that “good cause” for permissive withdrawal under Prof.Cond.R. 1.16
does not exist when a lawyer seeks to terminate the representation of a current client and
cause the client to incur additional expense due to conduct attributable directly to the
action of the lawyer and for the lawyer’s own personal benefit. Consequently, it is the
opinion of the Board that the lawyer should not withdraw from representation of his or
her current client claimants in order to undertake representation of the employer’s
workers’ compensation matters and should refrain from representing the employer until
all the pending workers compensation claims for his or her current clients are resolved.

Question (2)

    Absent informed consent, a lawyer who has formerly represented a client in a

matter cannot thereafter represent another person (or an entity) in the same or

because the Board does not have advisory authority related to matters of state law and does not find it
ethically appropriate for a lawyer to withdraw from representation of a current client for the sole purpose
of taking on representation of another, potentially more profitable, client. Nevertheless, the Board cautions
lawyers that there is Ohio case law which finds that if a lawyer does not see a matter to conclusion and
voluntarily withdraws without just cause, then a breach of contract has occurred under Ohio law, whether
the contract’s payment terms were for an hourly rate or a contingent fee. W. Wagner & G. Wagner Co., L.P.A.
v. Block, 107 Ohio App.3d 603, 669 N.E.2d 727 (6 th Dist. Erie County 1995). Per the court in W. Wagner, the
attorney cannot recover unless he or she had good cause to withdraw. Id.

6
Some courts have recognized an exception to the “hot potato” doctrine, which has become known as the
“thrust-upon” exception. In those cases the court allowed the law firm to drop one client in order to
continue representation on behalf of another client when the conflict did not exist at the onset of
representation and the conflict was not created by the firm. Gould, Inc. v. Mitsui Mining & Smelting Co., 738
F. Supp. 1121 (N.D. Ohio 1990); Carlyle Towers Condo. Ass’n, Inc. v. Crossland Sav., FSB, 944 F. Supp.341
(D.N.J. 1996).
Op. 2019-1 7

substantially related matter in which that person’s (or entity’s) interests are materially
adverse to the interests of the former client. Prof.Cond.R. 1.9(a). A substantially related
matter is defined as one that involves the same legal transaction or dispute or one in
which there is a substantial risk that confidential information normally obtained in the
prior representation would materially advance the position of another client in a
subsequent matter. Prof.Cond.R. 1.0(n). Further, a lawyer is prohibited from using any
information relating to the representation of the former client to the disadvantage of the
former client, unless specifically permitted by the rules or if the information has become
generally known. Prof.Cond.R. 1.9(c)(1)-(2). The duty of confidentiality continues
beyond formal conclusion of the lawyer-client relationship. Prof.Cond.R. 1.9, cmt. [1].
Clients must have the ability to disclose their problems freely and in depth to counsel,
without fear that one day that information may be used against them. Emle Industries Inc.
v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir. 1973).

   If the lawyer is now representing the employer and the former client is still an

employee of the employer, a new workers’ compensation matter likely may be related to
the former client’s continued employment. In this instance, it is possible that confidential
information provided by the former client to the lawyer about his or her employment
could be used by the lawyer in the new subsequent matter to materially advance the
position of the employer. Thus, it would be necessary for the former client to give
informed consent, confirmed in writing, for the lawyer to represent the employer in a
subsequent matter. Prof.Cond.R. 1.9(a). If the former client is no longer an employee of
the employer and the new matter is not the same matter or substantially related to the
former client’s employment, then there would be no conflict in the lawyer representing
the employer against the former client. For example, if the employer is a cable television
company, and the former client, subsequent to the termination of his or her employment,
failed to pay for cable services provided, the lawyer could represent the employer in a
collections action against the former client.

Question (3)

   The Rules of Professional Conduct do not specifically address if a lawyer may

recommend a specific lawyer or list of lawyers to prospective clients when a lawyer is
Op. 2019-1 8

unable to undertake representation.7 However, the Board recognizes that lawyers often
decline representation of a prospective client and suggest names of other lawyers who
may be able to provide representation. The apparent concern related to the question
posed is whether the mere act of recommending a specific lawyer or list of lawyers will
have an adverse effect on the interests of the lawyer’s current client, and thus violate the
lawyer’s duty of loyalty to the current client.

    Prof.Cond.R. 4.3, addresses a related, but slightly different situation, as to how a

lawyer representing a current client in a matter should deal with an unrepresented
adverse party. A lawyer shall not give legal advice to an unrepresented person, other
than the advice to secure counsel. Prof.Cond.R. 4.3. Thus, the rules clearly authorize the
ability of a lawyer to suggest that an adverse party seek counsel. The Board is of the
opinion that a lawyer does not violate his or her duty of loyalty to a client by going one
step further to recommend a specific lawyer or list of lawyers to a prospective client, so
long as the referral is made in good faith. For example, a lawyer should not refer a
potential client to a person the lawyer believes to be incompetent or dishonest. In fact, in
some instances, referring a prospective client to counsel may result in a more prompt and
efficient resolution of a matter to the benefit of a current client. The best practice is to
provide the prospective client with the names of several lawyers so that the prospective
client may have ultimate control over the selection of a lawyer.

CONCLUSION: In evaluating the potential conflicts of interest related to a current
client and a prospective new client, a lawyer must consider if the matters are directly
adverse and whether there is a substantial risk that the lawyer’s ability to effectively
represent a client will be materially limited by the lawyer’s responsibilities to another
client, a former client, a third person, or the lawyer’s own personal interests. In litigation,
the representation of one client is considered directly adverse and a conflict when the
client is asserting a claim against another client of the lawyer. Although the Ohio Rules
of Professional Conduct permit a lawyer, through informed written consent, to accept or

7
The suggestion of employment of other counsel is referenced in the comments to Prof.Cond.R. 1.16 in
relation to assisting a client upon permissive withdrawal. Specifically, Prof.Cond.R. 1.16, cmt. [8A],
indicates that even when a lawyer justifiably withdraws, to protect the welfare of the client, the lawyer
should, among other steps, suggest employment of other counsel. Thus, a lawyer may ethically
recommend another lawyer to a former client after withdrawal. It is best practice to provide the former
client with the names of several lawyers who may have the availability to represent the former client and
the referral must be made in good faith.
Op. 2019-1 9

continue representation when faced with a material limitation conflict, the Board
recommends that this type of representation be avoided when possible due to the
complicated circumstances that may hinder or prevent the competent and diligent
representation of a client when a lawyer is faced with the type of conflicting professional
and personal obligations presented in this opinion. In the event a lawyer does obtain
informed written consent, a lawyer is still required to provide competent and diligent
representation to each affected client. A lawyer may not withdraw from representation
of a current client in order to undertake representation of the adverse party, even if the
matters are unrelated. Regarding conflicts of interest related to former clients, absent
informed written consent from a former client, a lawyer may not represent a former
adverse party in a new matter against a former client if the new matter is the same or
substantially related matter in which that person’s interests are materially adverse to the
interests of the former client. However, if the new matter is not the same or a
substantially related matter, the lawyer may represent the former adverse party. Finally,
a lawyer who is unable to represent a prospective client due to a conflict may, in good
faith, recommend another lawyer or list of lawyers to a prospective client without
compromising the duty of loyalty owed to a current client. A lawyer should not refer a
potential client to a person the lawyer believes to be incompetent or dishonest.