Can a former in-house lawyer later represent clients against the former corporate employer in matters that were not pending while the lawyer was employed there?
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This page answers the general question as of 1987. 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-87-3 asked whether a former house counsel for a corporate employer may represent clients against the former corporate employer/client in matters that were not pending prior to or at the time the lawyer's employment ended. The committee answered that no per se proscription against the proposed representation exists, citing its earlier Formal Opinions E-79-1, E-85-8, E-85-9, and E-85-10.
The committee qualified that conclusion. The confidences and secrets of a former corporate employer may not be disclosed to others or used to the corporation's disadvantage by its former house counsel, citing SCR 20.22(1). Whether disqualification results is decided on a case-by-case basis by applying the "three-level inquiry" stated in LaSalle National Bank v. County of Lake: the court reconstructs the scope of the prior legal representation; determines whether it is reasonable to infer that confidential information would have been given to a lawyer handling those matters; and determines whether that information is relevant to the issues in the pending litigation against the former client. The committee noted that if a substantial relationship is found to have existed, the lawyer is presumed to have received confidential information during the prior representation, a presumption the opinion describes as rebuttable.
Currency note
This opinion was issued in 1987, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The duties to former clients are now addressed by SCR 20:1.9 / Model Rule 1.9, and the confidentiality rule has been renumbered and amended. 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 Treat this page as historical context, not current guidance.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 former in-house lawyer take a case against the company they used to work for?
A: The committee concluded there is no per se bar to representing clients against a former corporate employer in matters not pending while the lawyer was employed, citing its earlier opinions.
Q: What limits apply to a former house counsel switching sides?
A: The opinion stated the lawyer may not disclose or use the corporation's confidences and secrets to its disadvantage, citing SCR 20.22(1).
Q: How is disqualification decided?
A: Per the opinion, on a case-by-case basis using the three-level substantial-relationship inquiry from LaSalle National Bank v. County of Lake; a substantial relationship raises a rebuttable presumption that the lawyer received confidential information.
Background and rules framework
The opinion interpreted the former Code's confidentiality rule (SCR 20.22(1) / Model Rule 1.6) in the setting of a successive-representation conflict, the area now governed by the duties to former clients under Model Rule 1.9, applying the federal substantial-relationship test from the LaSalle line of cases.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.22(1) / Model Rule 1.6 (confidences and secrets of a client)
- Model Rule 1.9 (duties to former clients) (successive-representation framework)
Cases:
- LaSalle National Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983)
- Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978)
- United States Football League v. National Football League, 605 F. Supp. 1448 (S.D.N.Y. 1985)
Other opinions cited:
- Wisconsin Formal Ops. E-79-1, E-85-8, E-85-9, E-85-10
See also
- WI Ethics Op. E-87-4: Defending a Firm You Regularly Oppose
- WI Ethics Op. E-89-4: Suing a Former Joint Client in Divorce
- WI Ethics Op. E-88-2: Successive Government Employment and Related Lawyers
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-87-3.pdf
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