Can a lawyer represent a current client in a lawsuit against a former client when the prior work was unrelated?

Plain-English summary

A lawyer represented a commercial bank in litigation against an individual and several corporations connected to him. The lawyer's firm had earlier handled some unrelated transactions touching the individual and a separate corporation (reviewing leases, an attempted property purchase, a referred personal-injury matter, and the defense of a lease suit). Opposing counsel challenged the lawyer's right to represent the bank, and the former client objected in writing. The lawyer also asked, more generally, about the recurring situation where the firm drafts loan documents for the bank, the borrower pays the fee, and the loan later goes into litigation.

The committee concluded that, assuming the lawyer acquired no confidential information in the prior representations that would be material to the current litigation, there was no conflict or impropriety in representing the bank in the existing suit and the bankruptcy proceedings. It added that where the only connection between the lawyer and a proposed defendant in a note suit is that the defendant-borrower paid the fee for the loan documents, there is no conflict or impropriety at all, and the representation does not contravene DR 5-107 or the related ethical considerations.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (DR 5-107), the subject matter of which is now addressed by the duties to former clients in Rule 4-1.9 and the third-party-payment rule in Rule 4-1.8(f). Treat this page as historical context, not current guidance.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 a lawyer sue a former client?

A: Under this opinion, yes, where the new matter is unrelated to the prior work and the lawyer holds no confidential information from the prior representation that is material to the new matter.

Q: Does the former client's written objection by itself disqualify the lawyer?

A: No. The opinion turned on whether material confidences were acquired, not on the former client's objection; assuming none were acquired, the committee found no impropriety despite the objection.

Q: Does it matter that the borrower paid the lawyer's fee for the loan documents?

A: The opinion says it does not. Where the only link to the proposed defendant is that the borrower paid the fee for the loan papers, there is no conflict and the representation does not violate DR 5-107.

Background and rules framework

The opinion applied DR 5-107 of the former Code of Professional Responsibility, which addressed a lawyer accepting compensation or direction from someone other than the client. Its subject matter is now carried in Rule 4-1.8(f) (compensation from a third party), while the duty not to act adversely to a former client in a related matter is now in Rule 4-1.9. The Model Rule analogues are Rules 1.8(f) and 1.9.

Citations and references

Rules of Professional Conduct:

• DR 5-107 [Code of Professional Responsibility; subject matter now in Rules 4-1.8(f) and 4-1.9]

See also

• FL Bar Ethics Op. 71-46: Advising a Former Client of a New Claim
• FL Bar Ethics Op. 73-3: Former Joint Client in a Later Divorce
• FL Bar Ethics Op. 72-17: Former Partner of a Hospital President

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-18/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-18-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-18
June 21, 1971
Advisory ethics opinions are not binding.
An attorney may represent a current client against a former client if the current matter is unrelated to the prior matters and if no confidences material to the current representation obtained in the prior representation. The mere fact that a bank's attorney's fee for handling a loan transaction was charged to the borrower does not preclude the bank's attorney from representing the bank in a subsequent suit on the promissory note.
CPR: DR 5-107
Chairman Massey stated the opinion of the committee:
An inquiring attorney represents a commercial bank which has litigation against an individual and corporations of which the individual is either stockholder, officer, director, or general manager. The litigation involves promissory notes and security agreements drafted by the inquirer's law firm but for which the fee was an expense paid by the borrower. As to the corporate obligations, the individual executed guarantees in connection therewith. One corporation is involved because it is alleged to be the alter ego of a borrowing corporation although it is not an obligor on the note.
Opposing counsel in this litigation raised a question as to the propriety of the inquirer representing the bank. It now appears the individual and at least one of the corporations are bankrupt and the bank desires the inquirer to hotly pursue the matter in bankruptcy court. The inquirer apparently did handle certain transactions which were related to the individual, but said transactions were limited and unrelated to matters involved in the mentioned litigation. The other transactions were review and negotiation of three leases for an entirely separate corporation; making effort to purchase some property for the separate corporation; referring a personal injury case involving the individual's son; and defending a separate corporation on a breach of lease suit. There apparently was no knowledge given or available (nor involved in the named representations) to the inquirer or his firm which would adversely affect the individual or the corporate defendants of the bank litigation. Communication in writing has been addressed to the inquirer by the individual objecting to his representation of the bank.
The inquirer's concern extends beyond the immediate problem to those loan transactions his firm handles for the bank which later result in litigation when the fee has been charged to the borrower, as is the normal course of business procedure.
Assuming the non-acquisition of confidential information in the other specified representations, which information would be material to the existing litigation, there is no conflict or impropriety in the inquirer's conduct in behalf of the bank in the existing litigation and bankruptcy proceedings. Beyond this, if there has been no relation between the inquirer and a proposed defendant in a promissory note suit or like litigation excepting the payment of the fee by the borrower-defendant, there is absolutely no conflict or impropriety involved. Such proposed representation does not contravene DR 5-107 or the ethical considerations applicable thereto.