Can a former associate represent a client suing the lawyer's old firm over a matter the associate worked on while employed there?

Plain-English summary

A real estate firm's Lawyer A had handled a closing and allegedly drafted a deed incorrectly, conveying another lot the seller owned, which impaired the seller's title and cost him penalties and fees. Two years later the seller complained to the firm and sought to be made whole. Lawyer B, a newly hired associate, was assigned to review the file and suggest how to resolve the matter. The firm and the seller never reached a resolution, and Lawyer B then left. The seller now wanted to hire Lawyer B to cure the title problems and sue the firm for damages. The question was whether Lawyer B may represent the seller against her former firm.

The committee concluded Lawyer B may not, unless the former firm consents after consultation. While employed, Lawyer B provided legal advice on how to resolve the dispute, and under Rule 1.13(a) a lawyer employed by an organization represents the organization; so the firm was Lawyer B's client. Rule 1.9(a) bars a lawyer who formerly represented a client from later representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, without consent after consultation. Because Lawyer B would be representing the seller in the very matter on which she had advised the firm, Rule 1.9 prohibits the representation absent the firm's consent.

In practice

Under this opinion, on the facts presented, a departed associate cannot turn around and sue her former firm over the same matter she handled internally for it, unless the firm consents. The committee tied the result to Rule 1.13(a) (the firm was the associate's client when she advised it) and Rule 1.9(a) (no adverse representation in the same matter against a former client without consent after consultation).

Common questions

Q: I advised my old firm on a client's complaint. Can I now represent that client against the firm?

A: No, not without consent. The committee concludes that because you advised the firm (your client under Rule 1.13) on the same dispute, Rule 1.9 bars representing the adverse party in that matter unless the firm consents after consultation.

Q: Why is the firm treated as my former client?

A: Under Rule 1.13(a), a lawyer employed by an organization represents the organization. Because you provided legal advice to the firm on the dispute, the firm was your client.

Q: Could the representation still go forward?

A: Yes, if the former firm consents after consultation, per Rule 1.9(a).

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 1.9 (duties to former clients) and Model Rule 1.13 (organization as client), at SCACR 407.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / SC Rule 1.9(a) (no adverse representation against a former client in the same matter without consent)
• MR 1.13 / SC Rule 1.13(a) (a lawyer employed by an organization represents the organization)

See also

• SC Bar Ethics Op. 04-08: Former guardian ad litem switching sides
• SC Bar Ethics Op. 03-12: Confidences from a consultation that never became representation

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-13/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 05-13

RULES 1.9 and 1.13

Facts
Lawyer B was employed by a real estate law firm. Two years prior to Lawyer B’s employment with the firm, Lawyer A of the same firm handled a real estate closing for Seller and Buyer. Lawyer A allegedly drafted the deed incorrectly and conveyed another lot owned by Seller. Due to the resulting title problems on that other lot, Seller's marketability of title was impaired, he was assessed various county tax penalties and tax sale redemption fees, and he was forced to seek legal representation to help him cure the title defects.

Seller contacted firm two years after the original closing to complain of the Firm's handling of the transaction, and asked the Firm to make him whole for his damages. Lawyer B, who had then been recently hired as an associate, was assigned to review the file and offer suggestions as to how to resolve the matter. Ultimately, Seller and Firm never came to any resolution, and Lawyer B left the firm shortly thereafter.

Seller wants to hire Lawyer B to represent him in curing the title problems and in pursuing the real estate law firm for damages.

Question
May Lawyer B represent Seller in an action against lawyer's former firm?

Summary
Under Rules 1.9 and 1.13, Lawyer B may not represent Seller in an action against Lawyer B’s former firm, unless the former firm consents after consultation.

Opinion
Lawyer B may not represent Seller in an action against her former firm because, in this instance, her former firm was her client. To represent Seller in an action against her former client would run afoul of Rule 1.9, unless the former firm consents after consultation.

Under the facts presented, Lawyer B, in her capacity as an employee of the firm, clearly provided legal advice on how to resolve the instant dispute. Rule 1.13 states that a “lawyer employed . . . by an organization represents the organization acting through its duly authorized constituents.” Rule 1.13(a), Rule 407, SCACR (emphasis added).

Because Lawyer B contemplates an action against her former client, Rule 1.9(a) would apply, which provides that:

[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

Thus, because Lawyer B intends to represent Seller in the very same matter in which Lawyer B provided legal advice to her former firm, Lawyer B may not represent Seller unless her former firm consents to such a representation.