Can a lawyer who investigated a claim for a former client later represent a claimant against a co-surety, when a contribution claim might reach the former client?
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This page answers the general question as of 1976. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-76-4 considered an attorney who had represented the X corporation, one of two co-sureties on a performance bond, in connection with a claim under the bond's latent-defect warranty for a defective air conditioning system. The X corporation was now in liquidation. The claimant wished to hire the attorney to prosecute the Y corporation, the other co-surety, under the same warranty provision, after which a contribution claim might be made against the former client, the X corporation.
The committee examined Canons 4 (confidences and secrets), 5 (independent professional judgment), and 9 (appearance of impropriety). It found that the specific Disciplinary Rules under Canon 9 did not squarely fit, but pointed to EC 9-2, directing a lawyer to act in a way that promotes public confidence in the integrity of the legal system where explicit guidance is lacking. It noted that no confidential information appeared to have been transmitted between the X corporation and the attorney, which seemed to satisfy Canon 4, and observed that this exposed an apparent inadequacy in the canon's wording.
The committee concluded that the absence of any confidential disclosure was immaterial. It stated the general rule, in both civil and criminal cases, that to avoid even the appearance of impropriety an attorney cannot represent a party opposing a former client in a related matter, even if the attorney acquired no knowledge in the former representation that could later disadvantage the former client, citing Marketti v. Fitzsimmons, 373 F. Supp. 673 (W.D. Wis. 1974). It also relied on ABA Opinion 51 (a lawyer who investigated an accident for an insurance company may not represent the injured person against the insured and another insurer) and ABA Informal Opinion 906. The committee concluded that it would be improper for the attorney to represent the claimant against the Y insurance company.
Currency note
This opinion was issued in 1976, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canons 4, 5, and 9. The current counterpart is SCR 20:1.9 / Model Rule 1.9 (duties to former clients), under which the analysis turns substantially on whether the new matter is the same as or substantially related to the former representation. 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 who investigated a matter for a former client later take the opposing side?
A: No. The committee concluded the lawyer could not represent the claimant against the co-surety in the same matter, applying the rule that a lawyer may not oppose a former client in a related matter.
Q: Does it matter that no confidential information was shared?
A: No. The committee said the absence of any confidential disclosure was immaterial, because the rule against opposing a former client in a related matter applies even where the lawyer acquired no disadvantageous knowledge.
Q: What authority did the committee rely on?
A: It relied on Marketti v. Fitzsimmons, ABA Opinion 51 (insurer's investigating lawyer), and ABA Informal Opinion 906.
Background and rules framework
The opinion applied the former Code's Canons 4, 5, and 9 and the general rule barring representation against a former client in a related matter. The current counterpart is SCR 20:1.9 / Model Rule 1.9 (former clients).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.9 / SCR 20:1.9 (duties to former clients); former Code Canons 4, 5, 9 (EC 9-2)
Cases:
- Marketti v. Fitzsimmons, 373 F. Supp. 673 (W.D. Wis. 1974), opposing a former client in a related matter
Other opinions cited:
- ABA Opinion 51: insurer's investigating lawyer representing the injured person
- ABA Informal Opinion 906: former insurance adjuster later representing the claimant
See also
- WI Ethics Op. E-79-7: Representation Against a Former Client
- WI Ethics Op. E-85-8: Representation Adverse to a Former Client
- WI Ethics Op. E-85-9: Foreclosure Against a Former Title-Opinion Client
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-76-4.pdf
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