How do you decide whether a prior attorney-client relationship existed so that taking a new matter creates a conflict?

Plain-English summary

The inquiry concerned whether a prior attorney-client relationship existed such that it would cause the attorney now to have a conflict of interest in accepting new employment.

The committee was of the opinion that the question of whether the attorney-client relationship had previously existed depends upon what a reasonable person in the "client's" position would have believed. If that reasonable person would have concluded that an attorney-client relationship existed, then the lawyer must now comply with the requirements of RPC 1.9 regarding conflicts with former clients.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules then numbered RPC 1.6 (confidentiality), RPC 1.7 (current-client conflicts), and RPC 1.9 (former-client conflicts) correspond to Model Rules 1.6, 1.7, and 1.9 and have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: How do you decide whether someone was ever your client for conflict purposes?

A: Per the opinion, the test is what a reasonable person in the "client's" position would have believed. The committee was of the opinion that whether a prior attorney-client relationship existed depends on that reasonable-person view.

Q: What follows if a relationship is found to have existed?

A: The committee was of the opinion that if a reasonable person would have concluded an attorney-client relationship existed, the lawyer must comply with the requirements of RPC 1.9 regarding conflicts with former clients.

Q: Does the lawyer's own view of whether a relationship formed control?

A: No. The committee framed the test around what a reasonable person in the "client's" position would have believed, not the lawyer's characterization of the contact.

Background and rules framework

The opinion addresses conflicts of interest under the rules then numbered Washington RPC 1.6, RPC 1.7, and RPC 1.9, corresponding to Model Rules 1.6, 1.7, and 1.9. The committee made the threshold question, whether a former attorney-client relationship existed, turn on the reasonable belief of a person in the client's position, and tied the consequence to RPC 1.9's former-client conflict rule.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.6 (confidentiality of information), corresponding to Model Rule 1.6.
• Washington RPC 1.7 (conflict of interest; general rule), corresponding to Model Rule 1.7.
• Washington RPC 1.9 (conflict of interest; former client), corresponding to Model Rule 1.9.

See also

• California Ethics Op. 2003-164: whether a radio call-in show creates an attorney-client relationship
• WSBA Ethics Op. 962: a former-client conflict between adverse claimants to a decedent's claim
• WSBA Ethics Op. 968: representing a client harmed by a former client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=275

Original opinion text

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

Advisory Opinion: 1195
Year Issued: 1988
RPC(s): RPC 1.6; 1.7; 1.9
Subject: Conflict of interest; formation of attorney-client relationship

The Committee reviewed your inquiry concerning whether a prior attorney-client relationship existed such that would cause the attorney now to have a conflict of interest in accepting new employment. The Committee was of the opinion that the question of whether the attorney-client relationship had previously existed depends upon what a reasonable person in the "client's" position would have believed. If that reasonable person would have concluded that an attorney-client relationship existed, then the lawyer must now comply with the requirements of RPC 1.9 regarding conflicts with former clients.