Ezel / Ethics Opinions / OSB
OSB August 2005

When can an Oregon lawyer take a new case against a former client, and what counts as the same or a substantially related matter?

Short answer: Not without consent. The opinion concludes that under Oregon RPC 1.9 a lawyer may not act against a former client in the same or a substantially related matter without each affected client's informed consent confirmed in writing, and it cautions against reading substantial relationship too broadly.

Apply this to your situation

This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The opinion works through four scenarios: a lawyer who represented a husband in a dissolution and is later asked by the wife to modify custody; a lawyer who briefly investigated a claim for one client and is then asked to defend the target (another client) in that suit; a lawyer representing one accident victim who takes on a second victim whose interests turn adverse to the first; and a lawyer who represented two business buyers jointly and is then asked to represent one against the other. In each, the answer is no, qualified.

In every example the lawyer would act adversely to a former client, governed by Oregon RPC 1.9(a), which bars representing another person in the same or a substantially related matter materially adverse to a former client unless each affected client gives informed consent confirmed in writing. The opinion explains matters are substantially related in two ways: the new representation would injure the former client in the same matter, or there is a risk that confidential factual information from the prior representation could advance the new client's position. The opinion notes RPC 1.9(c) also limits using or revealing information relating to the former representation.

The opinion cautions against an overbroad reading. It states that two matters sharing the same disputants, industry, and some facts will generally not, standing alone, create a matter-specific conflict, and that merely having acquired confidential information does not create an information-specific conflict unless the information is material and usable against the former client. Where a conflict does exist and rests on confidential information, the lawyer must specifically disclose that fact to obtain the former client's informed consent.

In practice

The opinion holds that an Oregon lawyer evaluating a matter adverse to a former client applies RPC 1.9's same-or-substantially-related test and, if it is met, may proceed only with each affected client's written informed consent. The opinion treats the substantial-relationship inquiry as fact-specific and warns against diluting it, identifying same-matter injury and usable confidential information as the two recognized routes to a conflict.

Common questions

Q: Can an Oregon lawyer sue or oppose a former client?

A: Only outside the same or a substantially related matter, or with consent. The opinion concludes RPC 1.9(a) bars acting adversely to a former client in a substantially related matter without each affected client's informed consent confirmed in writing.

Q: What makes two matters "substantially related"?

A: The opinion concludes a matter is substantially related if the new representation would injure the former client in the same matter, or if there is a risk that confidential factual information from the prior representation could be used to advance the new client's position.

Q: Do shared parties or the same industry automatically create a conflict?

A: No. The opinion concludes that the same disputants, industry, and some shared facts will generally be insufficient by themselves to create a matter-specific conflict.

Background and rules framework

The opinion interprets Oregon RPC 1.9 (duties to former clients), including the same-or-substantially-related-matter bar in 1.9(a) and the information-use limits in 1.9(c), with the informed-consent definition in RPC 1.0(g). These track Model Rules 1.9 and 1.0. The opinion ties the analysis to the matter-specific framework in In re Brandsness, 299 Or 420, 702 P2d 1098 (1985).

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.9 / Model Rule 1.9 (duties to former clients)
  • Oregon RPC 1.0(g) and 1.0(i) / Model Rule 1.0 (informed consent; matter)

Cases:

  • In re Brandsness, 299 Or 420, 702 P2d 1098 (1985)
  • Portland Gen. Elec. Co. v. Duncan, Weinberg, Miller & Pembroke, P.C., 162 Or App 265, 986 P2d 35 (1999)
  • In re Sawyer, 331 Or 240, 13 P3d 112 (2000)

See also

Source

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