Can a lawyer advise a corporate client on a claim brought by a former employee the lawyer once represented in a divorce?

Plain-English summary

A lawyer had represented an individual, then an employee of a corporate client, in a completed divorce proceeding; part of that fee remained unpaid. The corporate client, after terminating the individual's employment, asked the lawyer to advise it on a claim the same individual had now advanced against the corporation. The lawyer asked whether his advice, or that of an associate, would be improper.

Assuming the present claim was totally unrelated to the divorce, that no information obtained from the former client in the divorce would be useful to the corporation in the new matter, and that no other circumstance created an appearance of conflict, the committee found no impropriety in the proposed representation, citing Drinker and ABA Informal Opinion 891 (1965). The committee added that the earlier representation of the former employee was a circumstance that had to be disclosed to the corporate client when undertaking the new representation, as one of the cardinal disclosure obligations of the former Canon 6. Because the representation was proper for the inquirer, it was equally proper for an associate; but if any of the committee's assumptions proved incorrect, neither the inquirer nor his associates could represent the corporation.

Currency note

This opinion was issued in July 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 6 on conflicting interests. Duties to former clients are now governed by Rule 4-1.9 of the Rules Regulating The Florida Bar, and current-client conflicts by Rule 4-1.7 (Model Rules 1.9 and 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can I represent a company against someone I used to represent in an unrelated matter?

A: Under this opinion, yes, on the stated conditions: the new claim must be unrelated to the prior matter, no confidential information from the prior representation may be useful against the former client, the prior representation must be disclosed to the new client, and nothing else may create an appearance of conflict.

Q: Does an associate in the firm face the same analysis?

A: Yes. The committee said that because the representation was proper for the inquirer, it was equally proper for an associate in his firm.

Q: What if one of those conditions is not met?

A: The committee stated that if any of its assumptions were incorrect, it would not be proper for the inquirer or his associates to represent the corporation.

Background and rules framework

The opinion applied the former Canon 6, which addressed conflicting interests and a lawyer's disclosure obligations. Those subjects are now divided between Rule 4-1.9 of the Rules Regulating The Florida Bar (duties to former clients, including the use of their confidences) and Rule 4-1.7 (current-client conflicts); the Model Rule analogues are Rules 1.9 and 1.7.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; conflicting interests and disclosure]

Other opinions cited:

• ABA Informal Opinion 891 (1965)

See also

• FL Bar Ethics Op. 71-18: Representing a Current Client Against an Unrelated Former Client
• FL Bar Ethics Op. 68-16: Former Association Counsel Representing an Officer-Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-16/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-16.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-16
July 24, 1967
Advisory ethics opinions are not binding.
There is no impropriety in advising a corporate client concerning a claim advanced against it by a former employee who was represented by the attorney in a divorce proceeding, provided (1) the claim is totally unrelated to the divorce proceeding; (2) no information procured from the former client in the divorce proceeding would be useful to the corporation in the new matter; (3) the former representation is disclosed to the corporate client; and (4) there is no other circumstance involved that would give an appearance of a conflicting interest.
Canon: 6
Opinion: ABA Informal 891
Chairman MacDonald stated the opinion of the committee:
The inquiring member of The Florida Bar formerly represented a then-employee of a corporate client in connection with a divorce proceeding which has been completed. A portion of the fee due from this individual remains unpaid. The attorney is now requested by the corporate client to advise it concerning a claim advanced against the corporation by this same individual whose employment has now been terminated.
The inquirer asks whether such advice by himself or an associate to the corporate client would be improper.
Although we are not provided any details, we assume for purposes of the inquiry that the present claim is totally unrelated to the divorce proceeding and that no information procured from the client in the divorce proceeding would be subject to use or would otherwise inure to the advantage of the corporation in the new matter. We likewise assume that there is no other circumstance involved which would provide an appearance of a conflicting interest. On these assumptions we find no impropriety in the proposed representation. See Drinker, page 112; ABA Informal Opinion 891 (1965).
We do call attention to the fact that the earlier representation of the former employee is a circumstance to be disclosed to the corporate client at the time of undertaking its representation, this being one of the cardinal obligations of disclosure required by Canon 6.
In view of the propriety of the representation by the inquirer, necessarily there would be no impropriety in an associate in his firm handling the matter. If, of course, any of our assumptions are incorrect, it would not be proper for the inquirer or his associates to represent the corporation.