Can a firm represent a new client against a former client when the new matter involves a different property and unrelated facts?

Plain-English summary

A few years earlier, a member of a law firm had represented Client L as a plaintiff in a construction-defect case about her home, and that representation ended before trial. The firm now represented Client R in an encroachment claim about a different parcel: R alleged that L, who was developing property adjacent to R, had built an encroaching driveway and damaged some of R's trees. The firm said it had not kept the files from the construction-defect matter and that the lawyer who represented L had no relevant confidences or secrets to share with the firm's lawyer now representing R.

The committee said that, on these facts, the two cases were not the same or substantially related, so the firm's representation of R did not run afoul of RPC 1.9. The committee added that RPC 1.9(b) prohibits using any confidence or secret relating to the prior representation to the disadvantage of the former client.

Currency note

This opinion was issued in 2004, 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee resolved the former-client question on the substantial-relationship test. Because the earlier construction-defect case about L's home and the later encroachment dispute over a different parcel were neither identical nor substantially related, the committee said RPC 1.9 did not bar the firm from taking the matter adverse to L. The committee paired that conclusion with the continuing limit of RPC 1.9(b): even where the new matter is permitted, the firm cannot use a confidence or secret from the former representation against the former client.

Common questions

Q: Can a firm sue a former client in a new, unrelated case?

A: The committee said yes on these facts, because the new encroachment claim was not the same or substantially related to the earlier construction-defect matter, so RPC 1.9 did not bar it.

Q: What makes two matters "substantially related" under RPC 1.9?

A: The committee did not restate a general test; it found these particular matters, one about construction defects in the client's home and one about an encroaching driveway on a different parcel, were not the same or substantially related on the facts presented.

Q: Even if the new case is allowed, what limit still applies?

A: RPC 1.9(b) still prohibits using any confidence or secret from the prior representation to the disadvantage of the former client.

Background and rules framework

The opinion interprets RPC 1.9 (Model Rule 1.9, duties to former clients). The committee applied the rule's substantial-relationship standard to decide whether the firm could act adversely to a former client, and it identified RPC 1.9(b) as the separate, continuing prohibition on using the former client's confidences or secrets. The analysis turns on the relationship between the two matters and on whether confidences from the first carry into the second.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients; same or substantially related matters)
• Washington RPC 1.9(b) (using a former client's confidence or secret to that client's disadvantage)

See also

• WSBA Ethics Op. 1056: Not Substantially Related Under 1.9
• WA Ethics Op. 2049: Suing a Former Insurer Client
• WSBA Ethics Op. 1115: Lawyer Switching Firms, No Confidences

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1319

Original opinion text

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

Advisory Opinion: 2075
Year Issued: 2004
RPC(s): RPC 1.9
Subject: Potential conflict of interest

The inquirer presented the following factual situation: Client L was represented by a member of a law firm a few years ago as a plaintiff in a construction defect case related to her home. Representation was ended prior to trial. The law firm now represents client R in an encroachment claim involving a different parcel of real property that L is developing on property adjacent to R’s property. It is alleged that L has built an encroaching driveway and damaged some of R’s trees. The law firm states that it has not retained files from the construction defect matter and that the lawyer who represented L “does not have any relevant confidences or secrets, damaging or otherwise,” to share with the firm’s current lawyer representing R.

The inquirer asks if RPC 1.9 precludes representation of R?

It appears from the facts as presented that the two cases are not the same or substantially related; thus the firm’s representation of R does not run afoul of RPC 1.9. In addition, RPC 1.9(b) prohibits using any confidence or secret relating to the representation to the disadvantage of the former client.