Can a lawyer represent a party in litigation against a defendant when the prospective client previously served as counsel for that same defendant?

Plain-English summary

A lawyer described two scenarios in which one lawyer would represent multiple clients in separate litigation against a single defendant. In each scenario, the prospective client was a lawyer who had formerly represented that defendant.

The committee was of the opinion that RPC 1.9(b) placed an obligation on the former-counsel prospective clients not to disclose confidences or secrets to the inquiring lawyer that might be damaging to the former client in litigation with any of the other parties. Because of that obligation, and because of the conflict-of-interest requirements in RPC 1.7(b), the committee concluded the lawyer should decline the multiple representation in both instances.

Currency note

This opinion was issued in 1993, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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 take on a client who used to represent the opposing defendant?

A: The committee concluded the lawyer should decline, because the prospective client's RPC 1.9(b) duty not to disclose the former client's confidences, together with RPC 1.7(b) conflict concerns, made the representation improper.

Q: What was the problem with the former counsel becoming a client?

A: Under RPC 1.9(b), that former counsel could not disclose the defendant's confidences or secrets to the inquiring lawyer, so the inquiring lawyer would be hampered in litigation against the defendant.

Q: Did the committee treat both scenarios the same way?

A: Yes. It concluded the lawyer should decline the multiple representation in both instances.

Background and rules framework

The opinion applied RPC 1.7(b) and RPC 1.9(b) (corresponding to ABA Model Rules 1.7 and 1.9). RPC 1.9(b) bars a lawyer from using or revealing a former client's confidences and secrets, and the committee read that duty as binding the prospective clients who had formerly represented the defendant. Combined with the RPC 1.7(b) limits on representation materially limited by the lawyer's other responsibilities, the committee found the multiple representation improper.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest; current clients); Washington RPC 1.7(b)
• ABA Model Rule 1.9 (duties to former clients; confidences); Washington RPC 1.9(b)

See also

• WA Ethics Op. 1520: Prosecutor's Office and the Lawyer-as-Witness Rule
• WA Ethics Op. 1497: Successive Government and Private Use of Public Information

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=602

Original opinion text

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

Advisory Opinion: 1521
Year Issued: 1993
RPC(s): RPC 1.7(b); 1.9(b)
Subject: Conflict of interest; lawyer seeks to represent former counsel for current opposing party

The Committee reviewed your inquiry concerning two scenarios involving one lawyer representing multiple clients involved in separate litigation with one defendant. In each instance, the prospective client of the lawyer was a former lawyer for the defendant.

The Committee was of the opinion that RPC 1.9(b) would place an obligation on the lawyers who sought the representation not to disclose confidences or secrets to the inquiring lawyer which might be damaging to the former client in litigation with any of the other parties. Because of that, and because of the requirements regarding conflicts of interests set out in RPC 1.79b), the Committee was of the opinion that the lawyer should decline the multiple representation in both instances.