In Kentucky, may a former in-house lawyer represent a client against the former corporate employer in a matter substantially related to the lawyer's in-house work?

Plain-English summary

The opinion answered a recurring question about lawyers who leave in-house positions. The Committee began with Rule 1.13: a lawyer who works in-house for a corporation or other entity represents the entity as a client. It followed that a former in-house lawyer is bound by the same rules and owes the same duties to the former client as any other lawyer (Rules 1.9 and 1.10).

The Committee concluded that the lawyer may not attack their own prior work or represent anyone in connection with a matter in which the lawyer participated personally and substantially while in-house. On imputed disqualification of the lawyer or any firm the lawyer joins, the Committee cited KBA E-354 (1993), noting that screening was not favored by the Committee outside the context of a former government lawyer, judge, or arbitrator. The Committee added that whenever there is substantial doubt about the propriety of a representation under Rules 1.9 and 1.10, the prudent lawyer will decline, and that while it does not decide fact-sensitive disqualification motions (a matter for the court), it pointed to Chugach Electric, Unified Sewerage v. Jelco, and Ullrich v. Hearst Corp. as illustrative.

Currency note

This opinion was issued in 1995 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), as the opinion's own prefatory note states. The bar notes that Rule 1.10 was later amended to permit screening, with written notice to the former client, to avoid imputation. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a former in-house lawyer sue their former corporate employer over a related matter?

A: No. The Committee concluded the lawyer owed the former employer the same former-client duties as any lawyer and could not take a substantially related adverse matter under Rules 1.9 and 1.10.

Q: Why was the corporation treated as the in-house lawyer's client?

A: Per the opinion, Rule 1.13 provides that a lawyer employed by an organization represents the organization, so the former in-house lawyer's duties to the entity mirror any lawyer's duties to a former client.

Q: Could screening cure the conflict for a firm the lawyer later joined?

A: The Committee noted, citing KBA E-354, that at the time it did not favor screening to avoid imputation outside the former-government-lawyer, judge, or arbitrator context.

Background and rules framework

The opinion interprets KRPC 1.9 (duties to former clients; Model Rule 1.9) and KRPC 1.10 (imputation of conflicts; Model Rule 1.10), in light of KRPC 1.13 (organization as client; Model Rule 1.13) and by comparison to KRPC 1.11(a) (former government lawyers). The analysis turns on whether the new matter is substantially related to the lawyer's in-house work.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / KRPC 1.9 (duties to former clients)
• MR 1.10 / KRPC 1.10 (imputation of conflicts)
• MR 1.13 / KRPC 1.13 (organization as client)

Cases:

• Chugach Electric Assoc. v. U.S. District Court, 370 F.2d 441 (9th Cir. 1966)
• Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339 (9th Cir. 1981)
• Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992), lawyer disqualified from representing a client against a former company client in the same kind of case

Other opinions cited:

• KBA E-354 (1993): screening not favored outside the former-government-lawyer, judge, or arbitrator context

See also

• KBA Ethics Op. E-399: Job Talks With Opposing Firm
• KBA Ethics Op. E-407: Public Defender Job Talks

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-387.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-387
Issued: November 1995

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Rule 1.10, which was amended and now permits
screening, with written notice to the former client, to avoid imputation. Lawyers should
consult the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

May a former “in-house” lawyer for a corporation or other entity [see Rule 1.13]
represent a client in a matter adverse to the interests of the corporation or entity if
the matter is substantially related to matters handled by the lawyer when he or she
worked “in-house” for the corporation or entity?

Answer:

No.

References:

KRPC Rules 1.9 and 1.10; Chugach Electric Assoc. v. U. S. District Court, 370
F.2d 441 (9th Cir. 1966); Unified Sewerage v. Jelco, 646 F.2d 1339 (9th Cir.
1981); Ullrich v. Hearst Corp., 809 F.Supp. 229 (S.D.N.Y. 1992).
OPINION

Committee members have received a number of questions along these lines, and the
Committee concludes that a formal opinion may be helpful.
A lawyer who works “in-house” for a corporation or other entity represents the entity as a
client. Rule 1.13. It follows that the former “in-house” lawyer is bound by the same rules as any
other lawyer, and owes the same obligations to his or her former client as any other lawyer
would owe. See Rules 1.9 and 1.10. Clearly, the lawyer may not attack his or her own prior
work or represent anyone in connection with a matter in which the lawyer participated personally
and substantially while working “in-house.” Compare Rule 1.11(a). On the disqualification of
the lawyer or any firm the lawyer joins see KBA E-354 (1993) (screening not favored by the
Committee outside of the context of the former government lawyer or the former judge or
arbitrator).
We also note that any time there is substantial doubt about the propriety of representation
in light of Rules 1.9 and 1.10 in this context, the prudent lawyer will decline the representation.
While the Committee does not decide disqualification motions, which are fact-sensitive and are
“for the court” to decide, we refer the reader to the following cases: Chugach Electric Assoc. v.
U. S. District Court, 370 F.2d 441 (9th Cir. 1966) and Unified Sewerage v. Jelco, 646 F.2d 1339
(9th Cir. 1981) (dealing with the pro and cons of disqualification because a lawyer’s work “in-

house” gave the lawyer special “insights and understandings”); and Ullrich v. Hearst Corp., 809
F.Supp. 229 (S.D.N.Y. 1992) (lawyer who handled employment discrimination cases for a
company disqualified from representing a client against the company in such a case.)

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.