Can a lawyer who did collections and eviction work for a hospital later sue that hospital for malpractice on behalf of a new client?

Plain-English summary

The inquiring lawyer asked whether he could represent a client in an action against a former client. He had collected debts assigned to a collection agency and prosecuted an unlawful-detainer action for a property management firm. The debts were owed by patients to hospital A, and the detainer action concerned rental property owned by the hospital. The lawyer said he had no contact with the hospital, only with the collection agency and the property management firm; he was no longer engaged by the collection agency and had not handled any unlawful-detainer actions for more than six months. The hospital was part owner of a medical clinic that employed or contracted with a doctor, and the lawyer asked whether he could represent a client in a malpractice action against the doctor, the clinic, and the hospital.

The committee did not determine whether the hospital had been the inquirer's client in the collections or unlawful-detainer work, finding insufficient information; it assumed without deciding that such a relationship existed. On that assumption, it concluded that RPC 1.7, 1.8, and 1.9 would not preclude the malpractice representation. RPC 1.7 and 1.8 did not apply because the hospital was not a current client. RPC 1.9, which addresses former-client conflicts and requires the former client's disclosure and consent when a lawyer represents another person in the same or a substantially related matter materially adverse to the former client, did not bar the representation because there was no basis to conclude the collections and unlawful-detainer matters were substantially related to the malpractice claim. The lawyer could proceed without the hospital's consent.

The committee added a caveat: RPC 1.6 and 1.9(b) prohibited the inquirer from revealing secrets or confidences relating to the hospital that he may have acquired in the unlawful-detainer or collection actions, and from using those confidences or secrets to the hospital's disadvantage, except as RPC 1.6 would permit.

Currency note

This opinion was issued in 2001, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The conflict and confidentiality rules the opinion applies were restructured in that revision. 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 sue a former client?

A: The committee said RPC 1.9 permits it where the new matter is not the same as or substantially related to the prior representation. Here, the prior collections and eviction work was not substantially related to the malpractice claim, so the lawyer could proceed without the former client's consent.

Q: Why didn't RPC 1.7 and 1.8 apply?

A: Because the hospital was not a current client. The committee said those current-client conflict rules did not apply to a former client.

Q: Did the lawyer still owe the former client anything?

A: Yes. The committee said RPC 1.6 and 1.9(b) still prohibited revealing or using to the hospital's disadvantage any confidences or secrets acquired during the earlier collection or unlawful-detainer work, except as RPC 1.6 would permit.

Background and rules framework

The opinion applies Washington's former-client conflict rule, RPC 1.9 (corresponding to Model Rule 1.9), and its "substantially related" test, while explaining that the current-client rules RPC 1.7 and 1.8 (Model Rules 1.7 and 1.8) do not reach a former client. It preserves the continuing confidentiality duty under RPC 1.6 (Model Rule 1.6) and RPC 1.9(b).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Washington RPC 1.9, 1.9(b) (duties to former clients; substantially related matters; use of confidences)
• Model Rule 1.7 / Washington RPC 1.7 (concurrent conflicts; inapplicable to a former client)
• Model Rule 1.8 / Washington RPC 1.8 (specific current-client conflicts)
• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)

See also

• WSBA Ethics Op. 1199: Former-Client Divorce, Substantially Related
• WSBA Ethics Op. 1064: Former Agency Lawyer, Adverse Firm
• WSBA Ethics Op. 1022: Lateral Lawyer, No Confidences

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1179

Original opinion text

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

Advisory Opinion: 1939
Year Issued: 2001
RPC(s): RPC 1.6; 1.7; 1.8; 1.9
Subject: Conflict of interest with former client

The inquiring lawyer asks if he may ethically represent a client in an action against a former client. The lawyer states that he collected debts that had been assigned to a collection agency and prosecuted an unlawful detainer action for a property management firm. The debts were owed by patients to hospital A and the detainer action was taken with respect to rental property owned by the hospital. The lawyer states he had no contact with the hospital but only with the collection agency and the property management firm. The lawyer is no longer engaged by the collection agency and that he has not handled any unlawful detainer actions for more than six months. The hospital is part owner of a medical clinic that employs a doctor or contracts with the doctor as an independent contractor. The lawyer asks if he may represent a client in a malpractice action against the doctor, the clinic and the hospital.

The committee opined that for purposes of responding to the inquiry, the committee does not determine whether the hospital was the inquirer’s client, either as to the collections or the unlawful detainer work described because there is insufficient information to make that determination. The committee simply assumes, without deciding, that such a relationship existed. Based upon the facts presented, we conclude that RPC 1.7, 1.8, and 1.9 would not preclude the inquirer from representing the client in the malpractice action described.

RPC 1.7 and 1.8 would not apply because the hospital is not a current client. RPC 1.9 addresses conflicts regarding former clients and requires disclosure and consent of the former client when a lawyer, who has formerly represented that client in a matter, represents another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client. Based upon the information provided, there is no basis for concluding that the collections and unlawful detainer matters are substantially the related to the malpractice claim of the current client. Accordingly, the inquirer may proceed without the consent of the hospital. Note, however, that RPC 1.6 and 1.9(b) prohibit the inquirer from revealing secrets or confidences relating to the hospital that may have been acquired in the unlawful detainer or collection actions, and from using those confidences or secrets to the hospital’s disadvantage, except as RPC 1.6 would permit.