Can an in-house lawyer who left a company become general counsel to a consulting firm that serves that company's industry?

Plain-English summary

The lawyer had worked for a corporation in both its legal department and its real estate department, and was offered a general counsel position with a consulting company that assists companies like his former employer with real estate holdings. The committee explained that the duty to preserve a client's confidences and secrets does not end when the attorney-client relationship terminates, and that a continuing duty of loyalty precludes representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client's interests, under RPC 1.9(a). A former client may waive the conflict, but under Washington's rule the consent must be in writing after consultation and full disclosure of the material facts.

The committee concluded that the general-counsel role would be prohibited only if the lawyer represented the consulting company (or one of its clients) in a matter substantially related to something he worked on for the former client and the consulting company's interests were materially adverse to the former client's interests. On the facts offered, the committee said this appeared unlikely, but the lawyer should alert the consulting company to the issue. The lawyer is also prohibited from using confidences or secrets from the former representation to the former client's disadvantage, and the committee noted that Washington's rule deletes the Model Rule exception that would permit using confidential information that has become generally known. The committee found no distinction between what the lawyer learned in the legal department and what he learned in the real estate department; secrets from either are protected under RPC 1.9 and 1.7.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 cited rules correspond to ABA Model Rules 1.7 (conflicts of interest) and 1.9 (duties to former clients).

Common questions

Q: Can a former in-house lawyer work for a consulting firm in the same industry as the old employer?

A: The committee concluded the move is barred only if the lawyer would represent the consulting company in a matter substantially related to his prior work and materially adverse to the former employer; on the stated facts that appeared unlikely.

Q: What is the test for the conflict?

A: Under RPC 1.9(a), the representation is precluded if it is the same or a substantially related matter in which the new client's interests are materially adverse to the former client's interests.

Q: Can the lawyer use what he learned about the former employer?

A: No. The committee said the lawyer is prohibited from using confidences or secrets relating to the former representation to the former client's disadvantage, and noted Washington's rule deletes the Model Rule exception for information that has become generally known.

Q: Does it matter whether he learned things in the legal department or the real estate department?

A: No. The committee found no distinction; secrets learned in either place are protected under RPC 1.9 and 1.7.

Background and rules framework

The opinion applied RPC 1.9 (duties to former clients, corresponding to ABA Model Rule 1.9) and RPC 1.7 (conflicts of interest, corresponding to ABA Model Rule 1.7) to a lawyer moving from an in-house role to general counsel of a consulting firm serving the same field. The committee anchored the analysis in the "substantially related matter" and "materially adverse" standard of RPC 1.9(a), the writing-and-full-disclosure requirement for a former client's waiver, and the separate, continuing bar on using a former client's confidences. The committee also flagged that Washington's rule omits the Model Rule allowance for using information that has become generally known.

Citations and references

Rules of Professional Conduct:

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

See also

• WA Ethics Op. 1703: Former Client as Opposing Witness
• WA Ethics Op. 1056: Adverse to a Former Client
• WA Ethics Op. 1712: GAL Then Representing the Minor

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=792

Original opinion text

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

Advisory Opinion: 1718
Year Issued: 1997
RPC(s): RPC 1.7; 1.9(a)
Subject: Conflict of interest; client confidences and secrets; former and new employer in related field

[The lawyer worked for a corporation in both the legal department and real estate department. He was offered a general counsel position with a consulting company that assists companies such as his former employer with real estate holdings.] The Committee decided that a lawyer's duty to preserve a client's confidences and secrets does not end with the termination of the attorney-client relationship. There is a continuing duty of loyalty to a former client that precludes the representation of another person in the "same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." RPC 1.9(a). A former client may, however, waive the conflict. In order for the consent to be valid, Washington's rule requires that it be "in writing after consultation and a full disclosure of the material facts." The duty of loyalty includes an obligation not to use confidential information about the former client in the subsequent representation of another client to the former client's disadvantage.

The inquiring attorney's role as general counsel to a consulting company would only be prohibited if he were representing the consulting company (or one of its clients) in a matter that was substantially related to something he worked on for the former client and if the consulting company's interests were "materially adverse" to the interests of the former client. Based on the facts offered, this appears to be unlikely. Nevertheless, the attorney should alert the consulting company to the issue.

The inquiring attorney is also prohibited from using confidences or secrets relating to his representation of the former client to the disadvantage of the former client. Washington's rule deletes the exception in the Model Rule that would permit the use of confidential information that has become generally known.

To the extent that the inquiring attorney seeks to draw some distinction between working in his former client's law department and working in his former client's real estate department, there is no distinction. Any secrets that he learned in either place would be protected under RPC 1.9 and 1.7.