Can a lawyer disclose that someone was a former client, and represent a new client adverse to that former client, when the former client won't consent?

Plain-English summary

The inquirer had represented a former client in a DUI case. That former client, now an eyewitness to a murder the inquirer's current client is accused of, declined to authorize disclosure of the prior representation or to sign a waiver. The inquirer and the former client agreed that the inquirer acquired no confidences or secrets in the prior representation.

The committee concluded that, as to the current client, the inquirer does not need the former client's consent to disclose the existence or subject matter of the prior representation, because the identities of a lawyer's clients and adverse parties and a description of the nature of the matter typically constitute neither confidences nor secrets. It found no RPC 1.9(a) written consent was required because the two representations do not involve the same or a substantially related matter in which the current client's interests are materially adverse to the former client. The committee added that a waiver is required to disclose confidences or secrets under RPC 1.6(a), and that the inquirer should consider carefully whether he acquired relevant confidences: if the DUI matter might be relevant or admissible to the former client's credibility as a witness in the murder case, the inquirer is constrained by RPC 1.9(b) from undertaking the murder defense if he would be "materially limited" within the meaning of RPC 1.7(b) by an inability to use confidences to test that credibility. If, as the inquirer and former client agreed, there are no relevant confidences or secrets, the inquirer may undertake the current representation.

In practice

Under this opinion, and under the Washington rules as they stood in 2005, a lawyer may disclose that a person was a former client and describe the prior matter without that person's consent, because identity and the general nature of a matter are usually not protected information. The opinion holds that no written conflict waiver is needed under RPC 1.9(a) when the prior and current matters are not substantially related. It also holds the analysis turns on confidences: the lawyer must assess whether he holds confidences from the prior representation that bear on the former client's credibility, because if he does and would be materially limited (RPC 1.7(b)) by being unable to use them, RPC 1.9(b) constrains him from the adverse representation.

Common questions

Q: Does a lawyer need a former client's permission to say that person was once a client?

A: The committee said no. It concluded the lawyer needs no consent to disclose the existence or subject of the prior representation, because a client's identity and the nature of the matter are typically not confidences or secrets.

Q: Is a written conflict waiver required to oppose the former client?

A: Not on these facts. The committee concluded RPC 1.9(a) requires no written consent where the prior and current matters are not the same or substantially related with materially adverse interests.

Q: What still limits the lawyer?

A: Confidences. The committee said that if the lawyer holds confidences from the DUI matter relevant to the former client's credibility, and would be materially limited under RPC 1.7(b) by being unable to use them, RPC 1.9(b) constrains him from the murder defense; absent such confidences, he may proceed.

Background and rules framework

The opinion applied RPC 1.6(a) (Model Rule 1.6, confidentiality), RPC 1.9(a) and 1.9(b) (Model Rule 1.9, duties to former clients), and RPC 1.7(b) (Model Rule 1.7, material limitation) as those Washington rules stood in 2005. It distinguished a client's identity and the nature of a matter, which it treated as ordinarily not protected, from confidences and secrets, which require a waiver to disclose and can constrain an adverse representation.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6(a) (confidentiality; "confidences" and "secrets")
• Model Rule 1.9 / Washington RPC 1.9(a), 1.9(b) (duties to former clients)
• Model Rule 1.7 / Washington RPC 1.7(b) (material limitation)

Cases:

• State v. Sheppard, 52 Wn. App. 707, 763 P.2d 1232 (Wash. Ct. App. 1988), client identity and nature of matter not ordinarily confidential
• Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960), client identity and privilege

Other opinions cited:

• WSBA Formal Opinion 192 (Sale of a Law Practice)

See also

• WSBA Ethics Op. 183: Confidentiality vs. a Funder
• ABA Formal Op. 497: 'Materially Adverse' Former-Client Conflicts
• NY State Bar Op. 1195: No Duty to Former Firm Clients

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1542

Original opinion text

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

Advisory Opinion: 2104
Year Issued: 2005
RPC(s): RPC 1.6(a), 1.7(b), 1.9(a), Formal Op 192
Subject: Disclosure of former clients identity; need for former clients consent

The inquirer stated that a former client of his declined to authorize the attorney to disclose the prior representation of the former client in a DUI case to a current client nor to sign a waiver that would authorize disclosure. The former client is an eye witness to a murder allegedly committed by the current client. The attorney and former client both agree that the attorney acquired no confidences or secrets in connection with the prior representation.

The committee opined that with respect to the current client the attorney does not need the consent of the former client to disclose the existence of the prior representation or the subject matter. “[T]he identities of a lawyer`s clients and the parties adverse thereto, and a description of the nature of the matter, will typically constitute neither confidences nor secrets. See, e.g., State v. Sheppard, 52 Wn. App. 707, 703-14, 763 P.2d 1232 (1988); cf. Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).” See also Formal Opinion 192 (Sale of a Law Practice).

The two representations do not involve “the same or a substantially related matter in which [the current client’s] interests are materially adverse to the interests of the former client” so no written consent is required under RPC 1.9(a).

A waiver is required to disclose confidences or secrets. RPC 1.6(a). The inquiring attorney should consider carefully whether he acquired relevant confidences in the prior representation. “Confidences” is defined to include information “the disclosure of which would be embarrassing or would be likely to be detrimental to the client”, RPC Terminology. If the DUI matter might be relevant and/or admissible with respect to the credibility of the witness/former client in the murder case, then the attorney is constrained by RPC 1.9(b) from undertaking the representation of the murder defendant if he is “materially limited” within the meaning of RPC 1.7(b) by his inability to use confidences to test the credibility of the testimony of the former client. If, as the attorney and former client agree, there are no relevant confidences and secrets arising from the prior representation that are relevant to the current representation, then the attorney may undertake the current representation.