Can a lawyer accept a new client to defend a suit that his own former client has brought on a closely related matter?

Plain-English summary

A lawyer described a tangled series of disputes over a filling-station lease. He had defended R against a suit by C and B, raising the defense that C had defrauded R into giving him a lease; the jury awarded C and B $500 against R. R, separately represented, then sued P, alleging P had verbally agreed to hold R harmless against any judgment recovered against her. P now sought to employ the writer, who had represented R in the earlier suit (and had represented both P and R on various prior occasions), to defend P against R's new suit. The writer recalled that R had told him, before the earlier trial, that P had agreed to stand by her, and that R's testimony concerned C's false representations. He asked whether he could accept P's employment.

The Board concluded the inquiring member could not accept P's retainer. To do so would violate the third paragraph of Rule 8, which provides that the obligation to represent a client with undivided fidelity and not divulge confidences forbids the later acceptance of employment from others in matters adversely affecting any interest of the client as to which confidence was reposed. The Board noted that a reason for the rule is the duty to avoid not only impropriety but the appearance of impropriety, and, quoting its earlier Advisory Opinion 54, that a member of the bar should refrain from creating a condition that might bring reproach on the profession.

Currency note

This opinion was issued in 1933, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Duties to former clients and the protection of client confidences are governed today by separate provisions of the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Could the lawyer take the new client against his own former client?

A: No. The Board concluded that accepting P's retainer would violate Rule 8 because the new matter adversely affected R, a former client whose confidences the lawyer held.

Q: Why did the lawyer's prior knowledge of R's affairs matter?

A: The lawyer had received R's confidences, including her account that P had agreed to stand by her, so taking the adverse representation would put him against a client as to whom confidence had been reposed.

Q: Did the duty extend beyond actual disclosure of secrets?

A: Yes. The Board grounded the result in the duty to avoid the appearance of impropriety and to refrain from creating a condition that might bring reproach on the profession, not only in the literal divulging of confidences.

Background and rules framework

The opinion applied the third paragraph of Rule 8 of the then-current Oklahoma Rules of Professional Conduct, patterned on the ABA Canons of Professional Ethics, which barred later employment adverse to a client as to matters in which confidence was reposed. The Board reinforced the result with the appearance-of-impropriety principle and its prior Advisory Opinion 54.

Citations and references

Rules of Professional Conduct:

• Rule 8, third paragraph (1929 Oklahoma Rules of Professional Conduct): undivided fidelity and the bar on later employment adverse to a client as to confidences reposed.

Other opinions cited:

• Oklahoma State Bar Advisory Opinion 54 (June 1933 Bar Journal): refraining from creating a condition that brings reproach on the profession.

See also

• Okla. Bar Ethics Op. 54: Representing the Adverse Party After Firm Dissolution
• Okla. Bar Ethics Op. 33: Switching Sides Against a Former School-District Client
• Okla. Bar Ethics Op. 44: Representing Two Sets of Heirs With Conflicting Claims

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-56/

Original opinion text

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

Adopted October 27, 1933

The Board is in receipt of the following request for an Advisory Opinion:

"I desire the opinion of your honorable body as to the propriety of my accepting employment by the defendant in a case growing out of the following statement of facts:

In September, 1931, P, as assignee of the original lessee, was in possession of a plat of land in the City of Ardmore, engaged in the operation of a drive- in filling station thereon. The original lease was for a term of five years and provided that the improvements thereon should be and remain the personal property of the lessee or his assigns, and might be removed at the termination of the lease. Said lease further contained a provision granting the lessee or his assigns an option to renew and extend said lease for a period of five years upon the same terms and conditions as the original lease. The lease had expired sometime prior to the date above mentioned, and while P had not served formal notice of his election to renew the lease, he had continued in possession and paid rent from month to month in the same manner as prior to the expiration of the original lease. Sometime about the 1st of September, 1931, C was employed by P as a filling station attendant, and for some reason he was discharged by his employer. C thereupon went to R, as the owner of the real estate on which the filling station was located, and by means of certain representations induced R to give him a lease on the property, for a certain period of years, which I do not now recall. Upon being advised that R had entered into a lease with C, P made the contention that the conduct of the parties subsequent to the termination of the original lease had the effect of renewing the same for a period of five years under the option clause thereof; and R thereupon attempted to repudiate the lease which she had given C upon the ground that C had defrauded her and had misrepresented the facts; and R then gave a new lease to P. C shortly thereafter demanded possession of the property, and such demand being refused, C, and B, who was interested in the lease with C, filed suit in the District Court here against R and P for possession of the property and damages. P was represented in that suit by S, and R employed the writer to defend her. The writer filed a motion on behalf of R to require the plaintiffs in that suit to elect whether they would seek to recover possession of the property or damages for breach of contract. This motion was sustained and C and B elected to proceed against R for damages for breach of contract and P was dismissed from the case. R defended the damage suit on the ground that she had been defrauded by false representation of C in the execution of the lease in his favor; but the jury rendered a verdict in favor of the plaintiffs and assessed their damages in the sum of $500.00. Execution was issued against the property of R and the judgment substantially paid, if not fully satisfied. Thereafter, R employs § and J to represent her in a suit against P, alleging in substance that P verbally agreed to hold her harmless against any judgment which might be recovered against her by C and B; and P has now sought to employ the writer to represent him in the defense of that suit, which was just recently filed. I recall that after the suit of C and B against R was tried, that she told me that P had agreed to stand by her in the law suit, and that she felt that he should pay the judgment, but I did not discuss the merits of the case with her, but I know that her statement to me before the case was tried and her testimony on the stand was to the effect that C had falsely represented to her that P did not want the property longer and that he made other false statements to her which induced her to execute the lease in favor of C and B; and her defense was predicated upon that theory. As a matter of fact, I have represented both P and R on various occasions prior to the litigation above referred to between C and B against R, but she did not seek to employ me in her present action against P. The answer day in this case is October 12th and I should like to have an opinion from your honorable board prior to that date whether I should accept employment in the case."

The Board is of the opinion that the inquiring member of the bar may not now accept the retainer of P. To do so would be in violation of the third paragraph of Rule 8 of the Rules of Professional Conduct, which reads:

"The obligation to represent the client with undivided fidelity and not divulge his secrets or confidence forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

One of the obvious reasons for the rule undoubtedly is that it is the duty of a member of the bar, not only to avoid all impropriety, but also to avoid the appearance of impropriety. Furthermore, as said in Advisory Opinion 54 (June, 1933, Bar Journal), "A member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession."