Can a lawyer sue an opposing lawyer for malpractice on behalf of the very party his former client defeated, when he holds the former client's confidences?

Plain-English summary

Lawyer B had represented John against Mary (represented by Lawyer C), getting a default judgment reopened and winning a counterclaim against Mary for abuse of process. After substitute counsel appeared for C and C testified as a witness, Mary paid the judgment and that matter ended. Mary then asked Lawyer B to sue Lawyer C for malpractice. C claimed B had an unspecified conflict. The question was whether B was prohibited from representing Mary against C if he had received confidential information from John protected by Rule 1.6.

The committee said Rules 1.9 and 1.6, which govern conflicts arising from former representations and the use of a former client's confidences, are intertwined. Rule 1.9(c) bars using or revealing information relating to the prior representation to the former client's disadvantage, except as Rules 1.6 or 3.3 permit or when the information is generally known, and Rule 1.6 generally bars revealing information relating to a representation without the client's consent. Courts read these rules to prohibit successive representation of clients with adverse interests because of the danger that confidences from the prior matter will be used in the present one (citing In re Peck and Adelman v. Adelman). Here, because the John and Mary matters arose from the same occurrence, information B received from John might relate to the prior representation (for example, information C failed to seek in discovery), so B could inadvertently reveal John's confidences; if so, B should decline. The committee said B could represent Mary if John consents to revelation of his confidences, or if B determines the information has become generally known, and cautioned B to proceed carefully, to consider whether Rule 3.7 makes him a likely necessary witness, and that Rule 3.3 was inapplicable and Rule 1.6(b)'s limited disclosure exceptions were not present.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer take a new case that might require revealing a former client's confidences?

A: The committee said not unless the former client consents or the information has become generally known; if the nature of the case could lead the lawyer to reveal those confidences, the lawyer should decline.

Q: Does the former client's consent cure the conflict?

A: The committee said yes; if John consented to revelation of the confidences obtained in the first lawsuit, Lawyer B could represent Mary.

Q: What else should the lawyer consider before taking the case?

A: The committee said the lawyer should consider Rule 3.7, to determine whether he is likely to be a necessary witness, and noted Rule 3.3 was inapplicable and Rule 1.6(b)'s narrow disclosure exceptions did not apply.

Background and rules framework

The opinion applies Rule 1.9 (duties to former clients) and Rule 1.6 (confidentiality), and references Rule 3.7 (lawyer as witness), each corresponding to the like-numbered Model Rule. The committee treated the confidentiality duty in Rule 1.6 and the former-client duty in Rule 1.9(c) as together controlling the risk of inadvertent disclosure.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9 / Model Rule 1.9: a lawyer shall not use or reveal a former client's information to the client's disadvantage absent consent or the information being generally known.
• South Carolina RPC 1.6 / Model Rule 1.6: a lawyer shall not reveal information relating to a representation without the client's consent, subject to narrow exceptions.
• South Carolina RPC 3.7 / Model Rule 3.7: lawyer as a necessary witness.

Cases:

• In re Peck, 112 B.R. 485 (D. Conn. 1990).
• Adelman v. Adelman, 561 So. 2d 671 (Fla. Dist. Ct. App. 1990).

See also

• SC Bar Ethics Op. 90-34: Suing a Former Client
• SC Bar Ethics Op. 01-04: Old Conflict as Leverage
• SC Bar Ethics Op. 90-32: Lawyer as Necessary Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-42/

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 90-42

Lawyer B represented John in a suit by Mary who was represented by Lawyer C. Lawyer B succeeded in opening up the default judgment obtained by Mary against John on the grounds that the default judgment was improperly obtained. Additionally, Lawyer B obtained a judgment against Mary on a counterclaim on John's behalf for abuse of process. Prior to the trial of the matter resulting in the judgment for John and his counterclaim, Lawyer D was substituted as the attorney for Lawyer C and Lawyer C appeared as a witness in the case. Mary has paid the judgment and that matter is ended. Mary now comes to Lawyer B and retains him to sue Lawyer C for malpractice. Lawyer C claims that Lawyer B has a conflict of an unspecified nature which renders him incapable of representing Mary.

Question:
Is Lawyer B prohibited for representing Mary in a lawsuit against Lawyer C if he received confidential information from John protected by Rule 1.6 of the Rules of Professional Conduct?

Summary:
Lawyer B must protect the confidential information he received during his representation of John. Unless John consents to Lawyer B's representation of Mary or unless confidential information received from John has become generally known, Lawyer B may not represent Mary if in the nature of the case he could possibly reveal confidential information received from John.

Opinion:
Rules 1.9 and 1.6 governing conflicts of interest arising from the representation of former clients and the use of confidential information obtained by an attorney during such representation are intertwined. Rule 1.9 provides in pertinent part:

(c) "A lawyer who has formerly represented a client in a matter... shall not thereafter:

(1) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit with respect to a client, or, when the information has become generally known; or (2) Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client." Rule 1.6 sets forth the guidelines for attorney's use of confidential information. The rule generally provides that a lawyer shall not reveal information relating to the representation of a client unless a client consents after consultation. Any disclosures by Lawyer B would be governed by Rules 1.6 (a) and 1.9 (c).

Courts have interpreted Rules 1.6 and 1.9 to prohibit an attorney's successive representation of clients with adverse interests because of the danger that he or she will use confidences gained in the prior representation in the present case. In Re Peck, 112 B.R. 485 D. Conn. 1990). See generally, Adelman v. Adelman, 561 So.2d 671 (Ct. App. Fla. 1990).

In the present case, Lawyer B may, by virtue of his representation of Mary and John, reveal to Mary confidence he received from John to prosecute the malpractice claim against Lawyer C. The cases of John and Mary, although different causes of action, would arise from the same occurrence, and hence, information received from John may relate to the prior representation. For instance, Lawyer B may have information form John which Lawyer C failed to request in discovery and which may have impacted the favorable result in John's case against Mary. Lawyer B may inadvertently reveal John's confidences in the successive lawsuit. If such a scenario exists, then Lawyer B should decline to represent Mary because of the potential for disclosure of confidential information.

On the other hand, if John consents to the revelation by Lawyer B of any confidences obtained in the first lawsuit, then Lawyer B could represent Mary. Additionally, if Lawyer B determines that the information has become "generally known," then he could use the information in representing Mary.

Lawyer B should proceed with caution to not reveal any confidential information from John if he decides to undertake the representation of Mary. Lawyer B should also consider Rule 3.7 to determine whether he is likely to be a necessary witness. Rule 3.3 would not be applicable to the present case.

Rule 1.6 (b) allows disclosure of confidential information in very limited situations, which are not present in this case.