May a firm negotiate a merger with another firm when it formerly represented clients adverse to the other firm's clients in ongoing litigation?
Apply this to your situation
This page answers the general question as of 1989. Ask about yours and see what the current Washington Rules of Professional Conduct say for your facts, with citations.
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 Treat this page as historical context, not current guidance.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)
See also
- WA Ethics Op. 1289: Pro Bono Work Adverse to the Firm's Current Clients
- WA Ethics Op. 1295: A Lawyer Who Also Works as a Mortgage Broker
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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