Could a lawyer who had represented a company in two pending suits accept employment to sue that same company for a new client?

Plain-English summary

K had represented an "S corporation" in two suits, each tried before a justice of the peace and appealed to district court, where both were still pending. K had no regular retainer from S; his employment had come about because he then represented S's liability insurance carrier, though the two cases came from S, not the insurer. After S changed carriers, it gave K no further business except the two appealed cases. B then offered to employ K to bring a damage suit against S, and the question was whether K could accept.

The Board quoted Rule 8: the obligation to represent a client with undivided fidelity and not divulge his confidences "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." Assuming K had not received, through his prior employment, any information about facts involved in B's proposed lawsuit, including any conditions of S's business that might remotely affect it, no rule prohibited K from accepting B's employment. The Board cautioned, however, that if K had obtained knowledge of any facts affecting B's proposed lawsuit through the prior suits, even knowledge that could have been acquired independently, accepting B's employment would be improper.

Currency note

This opinion was issued in 1935, 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. The rule cited here, Rule 8, belongs to that superseded canon-era code, though its former-client confidence principle persists in the modern rules on duties to former clients. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer sue a company he had previously represented?

A: Possibly. The opinion held that if the lawyer had gained no confidential knowledge of facts affecting the new suit through the prior representation, no rule barred him; if he had, accepting the new employment was improper.

Q: What if the confidential information could have been learned elsewhere?

A: The opinion still treated it as disqualifying. It said that if K had obtained knowledge of facts affecting the new suit through the prior employment, even knowledge that could be acquired independently, accepting the new employment would be improper.

Background and rules framework

The opinion applied Rule 8 of the canon-era Oklahoma Rules of Professional Conduct, barring subsequent employment adverse to a former client in matters as to which confidence had been reposed, drawn from the ABA Canons of Professional Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): the duty of undivided fidelity forbids subsequent employment from others in matters adversely affecting an interest of the client as to which confidence has been reposed.

See also

• Okla. Bar Ethics Op. 73: Will drafter representing a claimant against the will
• Okla. Bar Ethics Op. 87: Creditors' counsel suing the receiver for an outside claimant

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-91/

Original opinion text

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

Adopted September 27, 1935

The Board is in receipt of the following inquiry:

"K, an attorney at law, represented the § corporation as its attorney in two suits, each of which was tried before a Justice of the Peace and was appealed to the District Court where both suits are now pending. K has no regular retainer from S. At the time of his employment in the two suits mentioned, K represented a liability insurance company which then wrote such insurance for the § corporation and because of that relationship he was employed in the two cases above mentioned although his employment there came from the § company and not from the insurance company. Since the § company has changed its insurance carrier it has given no legal business to K except that he still represents the § company in the two appealed cases.

B, desiring to bring a damage suit against the § company, offered K employment as his attorney in the matter.

Is K at liberty to accept that employment?"

In response:

Rule Eight of the Rules of Professional Conduct of the State Bar provides:

"The obligation to represent the client with undivided fidelity and not divulge his secrets or confidences 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."

Assuming that K has not received information with reference to any of the facts involved in B's proposed lawsuit as a result of his employment in the two previous lawsuits, included in the "Facts" being any possible conditions under which § conducts his business which may remotely affect B's proposed lawsuit, there is no rule of professional conduct prohibiting the acceptance of the employment from "B" by K.

It must be borne in mind, however, that if K has obtained knowledge of any facts affecting B's proposed lawsuit as a result of his employment in the two previous suits, even though such knowledge could be acquired independently of the employment, the acceptance of employment from "B" would be improper.