Can a lawyer sue a defendant whom the lawyer's partner once represented in an unrelated dissolution and will?

Plain-English summary

The lawyer was retained to represent a plaintiff in an automobile accident case; the defendant was represented by an attorney hired by her insurance company. The lawyer learned that in 1976 and 1977 one of the lawyer's partners had represented the defendant in a dissolution, in which the defendant and her then husband had agreed on the terms and the partner had only prepared the documents. The partner had also prepared a will for the defendant, and in 1980 had received a letter advising of a petition to modify the dissolution, with apparently no further participation by the partner or the firm. The lawyer stated awareness of no confidential information from those representations relevant to the current personal injury litigation.

On those facts, the committee concluded that RPC 1.9 would not prohibit the lawyer from representing the plaintiff, because the present matter is not substantially related to the matter in which the partner had previously represented the defendant, assuming the lawyer's conclusion was correct that there were no confidences or secrets relating to the prior representation that could be used to the disadvantage of the former client. The committee cautioned, however, about the broad definition of the word "secret" in the Terminology section of the Rules of Professional Conduct. On the facts presented, the committee stated, there did not appear to be a conflict of interest.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The duty-to-former-clients rule then numbered RPC 1.9 corresponds to Model Rule 1.9, and the definition of "secret" referenced here came from the older confidences-and-secrets framework that Washington's adoption of the current rules later changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific point.

Common questions

Q: Does a partner's past representation of someone bar the whole firm from later suing that person?

A: Per the opinion, not automatically. The committee concluded RPC 1.9 did not bar the representation because the new matter was not substantially related to the prior one and, on the stated facts, no protectable confidences or secrets were at risk.

Q: What made the matters "not substantially related" here?

A: The committee pointed to the different subject matter (an auto accident now versus an agreed dissolution and a will earlier) and to the lawyer's stated conclusion that no confidential information from the prior work had any relevance to the personal injury case.

Q: Why did the committee single out the word "secret"?

A: The committee cautioned about the broad definition of "secret" in the Terminology section of the rules, signaling that the no-conflict conclusion depended on the lawyer's assessment being correct under that broad definition.

Background and rules framework

The opinion applies Washington RPC 1.9 (duties to former clients), corresponding to Model Rule 1.9. The rule turns on whether the new matter is the same as or substantially related to a matter in which the firm represented the former client, and on whether confidential information could be used to that client's disadvantage. The committee resolved both inquiries in the lawyer's favor on the stated facts while flagging the breadth of the "secret" definition as the point on which the analysis could change.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.9 (duties to former clients; substantial-relationship test), corresponding to Model Rule 1.9.

See also

• WSBA Ethics Op. 1056: a party who earlier delivered documents to the firm, later adverse, not substantially related
• WSBA Ethics Op. 996: representing a husband post-dissolution when the lawyer's former firm once consulted the wife but learned no confidences
• WSBA Ethics Op. 950: representing a party against a former client in unrelated litigation
• WSBA Ethics Op. 1057: a former-client conflict combined with a lawyer-as-witness question

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=189

Original opinion text

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

Advisory Opinion: 1078
Year Issued: 1987
RPC(s): RPC 1.9
Subject: Conflict of interest; litigation against former client

The Committee considered your inquiry regarding a potential conflict of interest. The Committee understood the facts to be that you have been retained to represent a plaintiff in an automobile accident case. The defendant is represented by an attorney hired by her insurance company.

You have learned that in 1976 and 1977, one of your law partners represented the defendant in a dissolution matter. That partner has advised you that the defendant and her then husband agreed on the terms of the dissolution, and that he only prepared the documents. Your partner also prepared a will for the defendant. In addition, in 1980 your partner received a letter from the defendant advising that there was a petition filed to modify the terms of the dissolution. However, apparently there was no further participation by your partner or the law firm in that matter. You state in your inquiry that you are aware of no confidential information that was learned during the representation of the defendant which would have any relevance whatsoever to the current personal injury litigation.

Based upon these facts, the Committee concluded that RPC 1.9 concerning conflicts of interest regarding former clients would not prohibit you from undertaking to represent the plaintiff in the present matter, because this matter is not substantially related to the matter in which the defendant was previously represented by your law partner, assuming your conclusion to be correct that there are no confidences or secrets relating to the representation which could be used to the disadvantage of the former client. The Committee did wish to caution you, however, regarding the broad definition of the word "secret" as defined in the Terminology section of the Rules of Professional Conduct. Based upon the facts presented by you, there does not appear to be a conflict of interest.