If a colleague once confided a legal problem to me as a lawyer, can I later become in-house counsel for the organization on the other side?

Plain-English summary

A faculty member approached the inquiring lawyer (a fellow faculty member) "as a lawyer" and described his version of a sexual harassment investigation the university was conducting. The lawyer listened, declined to represent him, and suggested independent counsel. More than four years later, the lawyer was asked to serve as the university's legal counsel, raising the question whether the earlier conversation barred that role.

The opinion concluded that, because the faculty member came to the lawyer "as a lawyer" and the lawyer did not stop him at the outset, a lawyer-client relationship was created and the conversation was a confidence protected by Rule 1.6, which applies during and after the relationship and which the lawyer may not reveal or use without consent. It applied Rule 1.9 (duties to former clients) and Rule 2.1 (independent professional judgment), noting the concern that the prior conversation might hinder candid advice to the university in areas like harassment investigations or tenure disputes.

The opinion concluded that the lawyer may not represent the university in any matter directly adverse to his obligation to the former contact, but that nothing in the facts indicated such an adverse result from representing the university generally. Drawing on Opinion 91-20 and the rebuttable substantial-relationship presumption (SK Handtool), it concluded the lawyer may reasonably believe most of his representation of the university would not be adversely affected, and that if a specific conflict arose, both the former contact and the university could consent after disclosure (the same Rule 1.7(b) analysis applying to his "responsibilities" to a non-client). It concluded the representation is permissible provided the lawyer remains vigilant for conflicts and takes appropriate measures if they arise.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rules 1.6(a), 1.7, 1.9, 1.18, and 2.1), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does a brief consultation create a lawyer-client relationship?

A: The opinion concluded it did here, because the person came to the lawyer "as a lawyer" and the lawyer did not decline that capacity at the outset, making the conversation a protected confidence under Rule 1.6.

Q: Can the lawyer still become counsel for the organization on the other side?

A: The opinion concluded yes, generally, because there was no present direct adversity; but the lawyer may not handle any matter directly adverse to his obligation to the former contact.

Q: What if a conflict later arises in a specific matter?

A: The opinion concluded that if a specific conflict arose, both the former contact and the university could consent after full disclosure, and the lawyer must remain vigilant and protect the confidence throughout.

Background and rules framework

The opinion interpreted Rule 1.6(a) (confidentiality, applying during and after the relationship; Model Rule 1.6), Rule 1.9 (duties to former clients; Model Rule 1.9), Rule 1.7 (concurrent conflicts and consent; Model Rule 1.7), and Rule 2.1 (independent professional judgment; Model Rule 2.1). It noted the rebuttable substantial-relationship presumption from Illinois case law.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6(a)
• Model Rule 1.9 (duties to former clients) / Illinois Rule 1.9
• Model Rule 1.7 (conflict of interest: current clients) / Illinois Rule 1.7
• Model Rule 2.1 (advisor) / Illinois Rule 2.1

Cases:

• In re Marriage of Decker, 153 Ill. 2d 298, 606 N.E.2d 1094 (1992), confidentiality applies at all times
• SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 619 N.E.2d 1282 (1993), rebuttable substantial-relationship presumption

Other opinions cited:

• ISBA Opinions 91-20 and 94-15

See also

• ISBA Ethics Op. 94-15: Divorce Against a Former Client
• ISBA Ethics Op. 98-01: Representation Against a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9504