Can a former Assistant Attorney General sue a college he once advised, both on his own behalf and for other clients?

Plain-English summary

The inquiring lawyer's former employment as an Assistant Attorney General assigned to the education division included representing parties connected to a college. He asked three questions. First, whether he could pursue his own cause of action regarding his contract as college legal counsel. The committee was of the opinion that this would not violate RPC 1.9(b) because, although he might hold confidences or secrets of the former client, RPC 1.6 would permit him to disclose them as reasonably necessary to establish a claim on his own behalf in a controversy with the former client. The committee was also of the opinion that it would not violate RPC 1.11(b) because whatever confidences he held did not appear relevant to the proposed litigation.

Second, as to representing a group of citizens suing the college president and Board of Trustees for negligent hiring of the president, the committee was of the opinion that, because he was not involved in the hiring, there was no indication he held any relevant confidences or secrets. Third, as to representing a campus police officer in a wrongful-discharge action against the college, the committee again was of the opinion that, on the facts presented, there was no indication he held any relevant confidences or secrets.

Currency note

This opinion was issued in 1990, 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 Treat this page as historical context, not current guidance.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 a lawyer sue a former client on the lawyer's own behalf and use the client's confidences?

A: Under this 1990 opinion, the committee was of the opinion that RPC 1.6 permits disclosing confidences as reasonably necessary to establish a claim on the lawyer's own behalf in a controversy with the former client, so the contract claim would not violate RPC 1.9(b).

Q: Could the former AAG represent citizens suing the college for negligent hiring?

A: Yes on the facts presented; because he was not involved in the hiring, the committee saw no indication he held any relevant confidences or secrets.

Q: Could he take a campus officer's wrongful-discharge case against the college?

A: The committee again was of the opinion, on the facts presented, that there was no indication of any relevant confidences or secrets, so the representation was not barred.

Background and rules framework

At the time of this opinion, Washington's RPC 1.9(b) governed duties to former clients, RPC 1.11(b) addressed former government lawyers, and RPC 1.6 governed confidentiality, including a lawyer's ability to reveal confidences to establish a claim or defense in a controversy with a client; these correspond to Model Rules 1.9, 1.11, and 1.6. The committee analyzed each proposed representation by asking whether the lawyer held confidences relevant to that matter.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality; self-defense exception)
• ABA Model Rule 1.9 (duties to former clients)
• ABA Model Rule 1.11 (former government lawyers)
• Washington RPC 1.6, 1.9(b), 1.11(b)

See also

• WA Ethics Op. 1349: Former Agency Lawyer Appearing Before the Agency
• WA Ethics Op. 1351: Representing an Agency While Adverse to It

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=430

Original opinion text

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

The Committee reviewed your inquiry concerning proposed representation which might relate to your former employment as Assistant Attorney General assigned to the education division and your representation of parties connected to a college. Your first question was whether you could pursue your own cause of action regarding your contract as college legal counsel. The Committee is of the opinion that such conduct would not violate RPC 1.9(b) because, although you may have confidences or secrets of your former client, RPC 1.6 would permit you to disclose those as reasonably necessary to establish a claim on your own behalf in a controversy between you and your former client. Similarly, the Committee is of the opinion that such conduct would not violate RPC 1.11(b) because whatever confidences or secrets you may have do not appear to be relevant to your proposed litigation. Further, regarding your proposed representation of a group of citizens to pursue an action against the college president and Board of Trustees for negligent hiring of the president, the Committee was of the opinion that since you were not involved in the hiring, there is no indication that you have any relevant confidences or secrets. Similarly, regarding the proposed representation of a campus police officer who wants to hire you to pursue a wrongful discharge action against the college, the Committee again is of the opinion, based upon the facts presented, there is no indication that you have any relevant confidences or secrets.