Can a lawyer who investigated a liability claim for a reinsurer later represent a third party against the insured in an unrelated matter without the insured's consent?

Plain-English summary

The inquiring lawyer had been engaged by a reinsurer to investigate a liability claim in excess of an insured county's self-insured retention. In that role the lawyer examined confidential information in the insured's file and suggested strategy and defense theories to defense counsel. The lawyer asked whether he was precluded from representing a third party (a hotel) against the insured county in an unrelated tax assessment matter, where the county believed there was a conflict and refused to consent under RPC 1.7(a)(2).

The committee concluded that the Rules did not prevent the representation, assuming the lawyer was correct that he learned no confidential information from the county in the liability case that would advantage the hotel or work to the county's detriment in the tax matter. The committee reasoned that even assuming the county had been a former client, the lawyer acted by exercising the insurance company's right and had no duty to defend the county, so the county was not a current client and the applicable rule was RPC 1.9 rather than RPC 1.7(a)(1) and (2). On the facts provided, the lawyer was not required under RPC 1.9(a) to obtain the county's consent, and RPC 1.9(b) did not appear to preclude the representation.

Currency note

This opinion was issued in 2000, 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 Treat this page as historical context, not current guidance.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: Was the insured county a current client or a former client of the reinsurer's lawyer?

A: The committee treated the county as, at most, a former client: the lawyer acted on the insurance company's right with no duty to defend the county, so the county was not a current client and RPC 1.9 applied rather than RPC 1.7(a)(1) and (2).

Q: Did the lawyer need the county's consent to take the unrelated tax matter?

A: On the facts provided, the committee concluded the lawyer was not required under RPC 1.9(a) to obtain the county's consent, and RPC 1.9(b) did not appear to preclude the representation.

Q: What assumption was the conclusion built on?

A: That the lawyer learned no confidential information from the county in the liability case that would advantage the hotel or harm the county in the tax assessment matter.

Background and rules framework

The opinion turned on the line between a current-client conflict under Washington RPC 1.7 (ABA Model Rule 1.7) and a former-client conflict under RPC 1.9 (ABA Model Rule 1.9). The committee placed the situation under RPC 1.9 because the lawyer's work for the reinsurer, exercised on the insurer's right and without a duty to defend, did not make the insured county a current client. RPC 1.9(a) governs consent for matters adverse to a former client, and RPC 1.9(b) addresses use of a former client's confidences.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (concurrent conflicts of interest); Washington RPC 1.7(a)(1), 1.7(a)(2)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9(a), 1.9(b)

See also

• WSBA Ethics Op. 1056: Adverse to a Former Client
• WSBA Ethics Op. 1042: Firm Suing 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=1100

Original opinion text

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

Advisory Opinion: 1906
Year Issued: 2000
RPC(s): RPC 1.7; 1.9
Subject: Conflict of interest; lawyer hired by re-insurer seeks to represent third party against insured in unrelated matter

The inquiring lawyer asked the following: Is a lawyer who was engaged by a re- insurer to investigate a liability claim in excess of an insured [county's]s self-insured retention, and who examined confidential information in the insured’s file and suggested strategy and defense theories to defense counsel, precluded from representing a third party [hotel] against the insured in an unrelated [tax assessment] matter where the insured believes there is a conflict of interest and refuses to consent pursuant to RPC 1.7(a)(2)?

It is the opinion of the committee that the Rules of Professional Conduct do not prevent you from representing the hotel in the tax assessment matter against the County assuming you are correct that no confidential information was learned by you from the County in the personal injury automobile liability case that will give advantage to the hotel or work to the detriment of the County in the tax assessment matter.

Even assuming the re-insured County was a former client of yours, by your exercising the insurance company’s right, in the absence of a duty to defend the re-insured, the County concedes it is not a current client, so the applicable RPC is 1.9, not RPC 1.7(a)(1) and (2).

Under the facts provided in your inquiry, you are not required pursuant to RPC 1.9(a) to obtain the County’s consent to your representation of the hotel in the unrelated tax assessment matter; nor, from the facts provided by you, does it appear that RPC 1.9(b) precludes you from representing the hotel against the County.