WSBA 1989

May a firm negotiate a merger with another firm when it formerly represented clients adverse to the other firm's clients in ongoing litigation?

Short answer: The committee was of the opinion that the firm could enter into merger negotiations provided no confidences or secrets of its former client were disclosed, but that RPC 1.9(a) would prohibit a merger of the firms at this time.

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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A firm asked whether it could enter into negotiations for a merger with another law firm where the inquiring firm had previously represented clients adverse to clients of the other firm in continuing litigation. The committee was of the opinion that the firm could enter into such negotiations provided that no confidences or secrets of its former client were disclosed, but that RPC 1.9(a) would prohibit a merger of the firms at this time.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 two firms even talk about merging when they are on opposite sides of ongoing litigation?

A: Under this 1989 opinion, yes, the firm could negotiate, provided no confidences or secrets of its former client were disclosed.

Q: Can the merger actually go through during the adverse litigation?

A: No. The committee concluded RPC 1.9(a) would prohibit a merger of the firms at this time.

Q: What rule controls?

A: RPC 1.9(a), the duties-to-former-clients rule.

Background and rules framework

RPC 1.9(a), Washington's version of ABA Model Rule 1.9(a), prohibits a lawyer who formerly represented a client in a matter from representing another person in the same or a substantially related matter in which that person's interests are materially adverse, absent informed consent. The committee permitted merger negotiations subject to protecting former-client confidences but found that consummating the merger would run afoul of RPC 1.9(a) given the adverse, continuing litigation.

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.9 (duties to former clients)
Washington RPC 1.9(a)

Source

Landing page: https://ao.wsba.org/print.aspx?ID=380

Original opinion text

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

The Committee reviewed your inquiry concerning whether your firm may enter into negotiations for a merger with another law firm wherein your firm previously represented clients adverse to clients of the other law firm in continuing litigation. The Committee was of the opinion that you could enter into such negotiations provided that no confidences or secrets of your former client were disclosed, but that RPC 1.9(a) would prohibit a merger of your law firms at this time.

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