Can a lawyer take a new client's case when a former client may testify as a witness in it?

Plain-English summary

The inquiry concerned representing a new client in a civil action arising from a rape charge brought by the daughter of a former client of the firm, where the former client may testify as a witness. The committee was of the opinion that the lawyer could represent the new client, but that RPC 1.9(b) would prohibit the lawyer from disclosing any confidences or secrets of the former client.

The committee added that if the lawyer agreed to undertake the new representation, RPC 1.7(a) would require obtaining the new client's informed written consent to proceed, with the understanding that the lawyer could not use any confidences or secrets of the former client.

Currency note

This opinion was issued in 1996, 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.7 and 1.9 correspond to ABA Model Rules 1.7 (conflicts of interest) and 1.9 (duties to former clients).

Common questions

Q: Can the lawyer take the new case when a former client will be a witness?

A: The committee was of the opinion that the lawyer could represent the new client.

Q: What limit applies because of the former client?

A: The committee said RPC 1.9(b) prohibits the lawyer from disclosing any confidences or secrets of the former client.

Q: What does the lawyer owe the new client before proceeding?

A: The committee said RPC 1.7(a) requires the new client's informed written consent, with the understanding that the lawyer cannot use the former client's confidences or secrets.

Background and rules framework

The opinion applied RPC 1.9(b) (the duty not to use or reveal a former client's confidences and secrets, corresponding to ABA Model Rule 1.9) and RPC 1.7(a) (current-client conflicts requiring informed consent, corresponding to ABA Model Rule 1.7). The committee permitted the new representation while constraining it: the former-client confidentiality limit is fixed, and the new client must consent in writing knowing of that limit.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7(a)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9(b)

See also

• WA Ethics Op. 1667: Suing a Client's Treating Doctor
• WA Ethics Op. 1616: Adverse to a Former Firm's Client
• WA Ethics Op. 1659: Checking Conflicts When Changing Firms

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=762

Original opinion text

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

Advisory Opinion: 1688
Year Issued: 1996
RPC(s): RPC 1.7(a); 1.9(b)
Subject: Conflict of interest; lawyer's former client may be witness in case on behalf of new client

The Committee reviewed your inquiry regarding representation of a new client in a civil action arising from a rape charge brought by a daughter of a former client of your law firm and in which the former client may testify as a witness. The Committee was of the opinion that you could represent the new client, but that RPC 1.9(b) would prohibit you from disclosing any confidences or secrets of the former client. The Committee was of the opinion that if you did agree to undertake representation of the new client, RPC 1.7(a) would require you to obtain the informed written consent of the new client to proceed with the representation with the understanding that you could not use any confidences or secrets of the former client.