Can a lawyer who left a firm represent a client against a corporation that was the firm's client while the lawyer was there?

Plain-English summary

The inquiry posed three questions. The committee declined the second and third (whether the firm representing a corporation has a conflict when the corporation is sued by a shareholder, director, officer, and employee, and whether the firm is disqualified if one of its members will be a necessary witness) because they involved another attorney's conduct.

On the first question, the committee concluded that because the defendant corporation was a client of Law Firm ABC while Attorney A was a member, any and all confidences of that client are imputed to Attorney A, whether or not Attorney A actually handled the legal work for the corporation. The defendant corporation should therefore be treated as a client of Attorney A, and under RPC 1.9 Attorney A cannot take a claim against a former client without permission unless the matter is unrelated to the previous representation. The committee said the open question was whether representing the former employee, stockholder, director, and officer would be the "same or substantially related matter" as the representation of the defendant corporation, and that, while it could not tell from the inquiry, this was likely to be the case.

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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Does a lawyer who never worked on a client's matter still owe that client a former-client duty after leaving the firm?

A: Per the committee, yes. It concluded that the firm client's confidences are imputed to a former member whether or not that member actually handled the work, so the corporation is treated as the departed lawyer's former client under RPC 1.9.

Q: Can the departed lawyer sue that former corporate client?

A: Only if the new matter is unrelated to the prior representation, or with the former client's permission. The committee said RPC 1.9 otherwise bars a claim against a former client in the same or a substantially related matter.

Q: Were the matters here substantially related?

A: The committee could not tell from the inquiry but said it was likely the case, leaving the "same or substantially related matter" determination to the facts.

Background and rules framework

The opinion applied RPC 1.9 (duties to former clients, corresponding to ABA Model Rule 1.9). The committee imputed the former firm client's confidences to a departed member regardless of that member's actual involvement, treated the corporation as the lawyer's own former client, and made the bar on adverse representation turn on whether the new matter was the same or substantially related to the prior representation. It declined the inquiry's other questions as involving another attorney's conduct.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9

See also

• WSBA Ethics Op. 1056: Adverse to a Former Client
• WSBA Ethics Op. 1057: Unemployment Claim Conflict
• WSBA Ethics Op. 1064: Former Agency Lawyer Screening

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1123

Original opinion text

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

Advisory Opinion: 1731
Year Issued: 1997
RPC(s): RPC 1.9
Subject: Conflict of interest; representation adverse to client of former law firm

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry regarding the following three questions:

1. Is it a conflict of interest for a former member (Attorney A) of Law Firm ABC to represent an individual against a corporation when the corporation was a client of Law Firm ABC during such time that Attorney A was a member of the firm?

2. Does the law firm which represents a corporation have a conflict of interest when that corporation is sued by a shareholder, director, officer, and employer of the corporation?

3. Is a law firm which represents a corporation disqualified from representing that corporation in court if a member of the law firm is going to become a necessary witness?

The Committee declines to respond to the second and third questions because they involve another attorney’s conduct. In response to your first question, since the defendant corporation was a client of Law Firm ABC when Attorney A was a member, any and all confidences of that client are imputed to Attorney A, whether or not Attorney A actually handled the legal work for the corporation. Therefore, defendant corporation should be considered as a client of Attorney A and Attorney A cannot take a claim against a former client under RPC 1.9 (without permission unless it is an unrelated subject matter to the previous representation). The question arises whether or not the representation of the former employee, stockholder, director and officer would be the "same or substantially related matter" as the representation of defendant corporation. We cannot tell from the inquiry whether it is the same or a substantially related matter, but it is likely to be the case.