Can a lawyer represent a new client against a former client in a matter related to the earlier work, when the old file is gone?

Plain-English summary

In 1996, the attorney represented a party in a single consultation concerning a purchase and sale agreement for real estate; that was the only transaction in which the attorney represented that party, and the file was later destroyed after five years in archives. In 2003, the adjoining property owner asked the attorney to bring an action to reform the deed on the property that had been sold to the first party's predecessor in interest, the question being whether the recorded easement should have been nonexclusive or completely private. The attorney's only advice to the first party about the easement had been limited to what was in the public record (the existence of the easement) and contained nothing about an error in the deed's drafting.

The committee analyzed the question under RPC 1.9, which bars a lawyer who formerly represented a client from later representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client consents in writing after consultation and full disclosure. The committee concluded that the easement-reformation dispute and the earlier purchase consultation are substantially related, and that the new client's interests are materially adverse to the former client. Because the former client had not consented in writing after consultation and full disclosure, the committee said a violation of RPC 1.9 has occurred.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. RPC 1.9 (duties to former clients) kept its number in 2006, though the 2006 revisions changed the consent mechanics to "informed consent, confirmed in writing." 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee treated the matter as a former-client conflict under RPC 1.9, turning on two findings: that the easement-reformation dispute is substantially related to the earlier purchase consultation, and that the adjoining owner's interests are materially adverse to the former client. On those findings, and with no written consent from the former client after consultation and full disclosure, the committee concluded the continued representation violated RPC 1.9. The committee treated the destruction of the old file and the limited, public-record nature of the earlier advice as not curing the substantial relationship.

Common questions

Q: Does RPC 1.9 apply even though the old representation was a single consultation years earlier?

A: The committee applied RPC 1.9 to a one-time 1996 consultation, concluding that the later easement dispute was substantially related to that earlier work and that the new client's interests were materially adverse to the former client.

Q: Does it matter that the lawyer's old file was destroyed?

A: The committee still found a substantial relationship and a violation of RPC 1.9 absent written consent, treating the file's destruction as not changing the conflict analysis.

Q: What would have allowed the representation?

A: Under RPC 1.9 as the committee applied it, the former client's written consent after consultation and full disclosure of the material facts. The committee noted that consent had not been given.

Background and rules framework

The opinion interprets RPC 1.9 (Model Rule 1.9, duties to former clients), which the committee quoted: a lawyer who formerly represented a client may not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client consents in writing after consultation and full disclosure, and may not use confidences or secrets relating to the prior representation to the former client's disadvantage except as RPC 1.6 would permit. The dispositive question the committee identified was whether the easement-reformation dispute is "the same or a substantially related matter" adverse to the former client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients; same or substantially related matter)

See also

• WSBA Ethics Op. 2045: Prospective Client and a Later Conflict
• WSBA Ethics Op. 1056: Adverse to a Former Client
• WSBA Ethics Op. 1159: Former Firm Now Opposing Counsel

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1279

Original opinion text

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

Advisory Opinion: 2037
Year Issued: 2003
RPC(s): RPC 1.9
Subject: Conflict of interest; representation in same or substantially related matter

This inquiry concerns whether the continued representation of an adjoining land owner in a dispute over an easement violates the Rules of Professional Conduct. In 1996, the attorney represented a party concerning a purchase and sale agreement for the purchase of real estate. This transaction required only one consultation. The purchase and sale agreement was the only transaction in which the attorney represented that party. The files concerning the transaction have been destroyed after five years in archives, as part of the usual course of business for the attorney. In 2003, the adjoining property owner contacted the attorney to represent him in an action to reform the deed on the property which was sold to the first partys predecessor interest by the adjoining property owner. The reformation concerns whether the recorded easement should have been nonexclusive or completely private. The only advice to the first party concerning the easement was limited to what was in the public record (the existence of the easement) and contained no information on any error in the drafting of the deed to the first partys predecessor in interest. The issue of whether the attorney`s continuing representation of the adjoining owner is an ethical violation is controlled by RPC 1.9.

In pertinent part, RPC 1.9 provides, "A lawyer who formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts; or (b) use confidences or secrets relating to the representation to the disadvantage of the former client, except as rule 1.6 would permit. The dispositive issue here is whether the dispute concerning the reformation of the easement from a nonexclusive to a private easement is "the same or a substantially related matter" in which the adjoining property owners interests are materially adverse to the interest of the first party. It appears to the committee that these matters are substantially related and the former client has not consented in writing after a consultation with the attorney and a full disclosure of the material facts, then a violation of RPC 1.9 has occurred.