Ezel / Ethics Opinions / OSB
OSB August 2005

Can an Oregon lawyer take a new matter adverse to a former client when only confidential information, not the same matter, is at stake?

Short answer: It depends on the information. The opinion concludes that where the new matter is not the same or substantially related to the former representation, the lawyer may proceed without consent unless the lawyer holds confidential information from the former client that could be used to that client's disadvantage, in which case written informed consent is required.

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 Not binding precedent.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 presents three scenarios where a lawyer who prepared a will or handled a dissolution for a now-former client is later asked to take an unrelated matter touching that former client: helping another client sell a boat to former Client A; collecting money from former Client B; and representing former Client C's later spouse in a new dissolution against Client C. The question is whether the lawyers may proceed without disclosure to and consent from the former and current clients.

The opinion analyzes Oregon RPC 1.6 (confidentiality), RPC 1.8(b) (no use of client information to the client's disadvantage without informed consent), and RPC 1.9 (duties to former clients). It concludes none of the scenarios is a matter-specific conflict, because none involves the same transaction or legal dispute as the prior representation. So unless a lawyer acquired confidential information that could materially advance the new client's position or be used to the former client's material disadvantage, the matters are not substantially related under RPC 1.9(a) and the lawyer may proceed without consent.

Applying this to the facts, the opinion finds nothing suggesting Lawyer A learned material, detrimental information about Client A usable in the boat sale, so Lawyer A may proceed; but if such information exists, written informed consent from both clients (including a discussion of the potential adverse use) is required. The opinion notes Lawyer B may have learned about Client B's assets in preparing the will, which could be used in the collection action, so Lawyer B would need written informed consent. For Lawyer C, if material information from the prior dissolution is unknown to the new spouse and could be used to former Client C's disadvantage, written informed consent is required, but the information-specific category does not apply if the spouse already knows the information.

In practice

The opinion holds that an Oregon lawyer weighing a new matter that touches a former client first asks whether it is the same or substantially related; if not, the remaining question is whether the lawyer holds confidential information from the former representation that could be used against that client. The opinion treats the presence of such usable confidential information as the trigger for written informed consent, and treats information the adverse party already knows as outside the concern.

Common questions

Q: Can a lawyer take an unrelated matter against a former client?

A: Often yes. The opinion concludes that where the new matter is not the same or substantially related, the lawyer may proceed without consent unless the lawyer holds confidential information usable to the former client's disadvantage.

Q: When is written informed consent required?

A: When the lawyer has material confidential information from the former representation that could be used against the former client. The opinion concludes consent must be confirmed in writing and discuss the potential adverse use.

Q: What if the adverse party already knows the information?

A: Then the information-specific concern does not apply. The opinion concludes there is no reason to apply that category if the new client already knows the information in question.

Background and rules framework

The opinion interprets Oregon RPC 1.9 (former clients), RPC 1.6 (confidentiality), and RPC 1.8(b) (use of client information), with the matter-specific and information-specific framework from In re Brandsness. These track Model Rules 1.9, 1.6, and 1.8. The opinion also references ORS 9.460(3) on maintaining client confidences.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.9 / Model Rule 1.9 (former clients)
  • Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)
  • Oregon RPC 1.8(b) / Model Rule 1.8 (use of client information)

Statutes:

  • ORS 9.460(3) (duty to maintain client confidences)

Cases:

  • In re Brandsness, 299 Or 420, 702 P2d 1098 (1985)

See also

Source

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