Can a lawyer represent the opposing lawyer in an unrelated matter while the two are on opposite sides of a pending case?

Plain-English summary

The committee addressed whether lawyers or firms who are representing opposing parties in a pending matter can agree to have one represent the other in an unrelated matter. It concluded that the arrangement is permissible if the lawyers reasonably believe the proposed representation will not adversely affect, or be affected by, their other professional responsibilities, and all of the clients involved, both current and prospective, consent to the arrangement in writing after disclosure of the material facts.

The committee added that consent is not required unless it is possible that the prospective representation would materially limit, or be materially limited by, the lawyers' responsibilities to their present clients.

The committee identified factors relevant to whether a prospective representation could materially limit a lawyer's existing responsibilities: the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that the actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. It described this as an objective standard, to which the subjective expectations of the client are relevant only insofar as they are reasonable.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Can a lawyer represent opposing counsel in an unrelated matter?

A: Yes, if the lawyers reasonably believe their other duties will not be adversely affected. Written client consent after disclosure is required when the new representation could materially limit duties to present clients.

Q: When is client consent required?

A: Consent is not required unless it is possible that the prospective representation would materially limit, or be materially limited by, the lawyers' responsibilities to their present clients.

Q: How does a lawyer decide whether the new representation would materially limit existing duties?

A: The committee listed the duration and intimacy of the relationship with the clients involved, the functions the lawyer performs, the likelihood the conflict will actually arise, and the likely prejudice if it does. The test is objective; a client's subjective expectations matter only to the extent they are reasonable.

Background and rules framework

The opinion applies RPC 1.7, Washington's conflict-of-interest rule (the analog of Model Rule 1.7), along with DR 5-101 of the former Code of Professional Responsibility. The committee framed the analysis around whether the lawyers' responsibilities to existing clients could be materially limited by representing the opposing lawyer, and around informed written consent from all affected clients.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (concurrent conflicts of interest)
• Washington RPC 1.7 (concurrent conflicts of interest)
• DR 5-101 (former Washington Code of Professional Responsibility): conflict between the lawyer's interests and the client

See also

• WSBA Ethics Op. 1016: state-paid guardian ad litem and conflicts
• WSBA Ethics Op. 1021: closing lawyer engaged through a mortgage company

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=9

Original opinion text

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

Advisory Opinion: 897
Year Issued: 1985
RPC(s): DR 5-101; RPC 1.7
Subject: Conflict of interest; lawyer representing opposing counsel in unrelated matter.

When lawyers or law firms are representing opposing parties in a pending matter, one lawyer or law firm can agree to represent the other in an unrelated matter if the lawyers reasonable believe that the proposed representation will not adversely affect (or be affected by) their other professional responsibilities and all of the clients involved, both current and prospective, consent to the arrangement in writing after disclosure of the material facts. Consent is not required unless it is possible that the prospective representation would materially limit (or be materially limited by) the lawyers' responsibilities to their present clients. Factors relevant to determining whether a prospective representation could materially limit a lawyer's existing responsibilities include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that the actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. This is an objective standard, to which the subjective expectations of the client are relevant only insofar as they are reasonable.