Can a lawyer take a case that might require impleading people the lawyer used to represent?

Plain-English summary

A lawyer who had represented a condominium homeowners' association (HOA) from time to time was asked to defend it against the city's action for nonpayment of the condominium's water bill. In defending the HOA, the lawyer expected to implead certain unit owners, some of whom he had represented in acquiring their units; he no longer represented any of them. He asked whether he could ethically take the defense.

The opinion analyzes Rule 1.9(a), which bars a lawyer from representing a new client in the same or a substantially related matter where the new client's interests are materially adverse to a former client's, absent the former client's informed consent confirmed in writing. Material adversity is clearly present, because a successful impleader would make the unit owners liable to the HOA for portions of any judgment. So the question turns on whether the water bill action is "substantially related" to the prior unit-acquisition representations.

Drawing on Rule 1.9, Comment [3], the opinion explains that matters are substantially related if they involve the same transaction or legal dispute, or if a reasonable lawyer would conclude there is a substantial risk that confidential information normally obtained in the prior representation would materially advance the new client's position. It gives examples: whether the unit purchase-and-sale agreements' terms would be put in issue (a common transaction would make the matters substantially related and require each former client's written consent), and whether the lawyer holds confidential information bearing on a former client's credibility as a witness or on financial or health vulnerabilities. On the facts, the opinion says it lacks enough information to confirm the lawyer's view that the matters are unrelated, but if the lawyer has weighed these considerations and correctly concluded they are not substantially related, he may represent the HOA without the former clients' consent.

The opinion adds a caveat that applies even when there is no substantial-relationship bar: the lawyer may possess confidential information of the former unit owners that is not significant enough to make the matters substantially related but could be useful in the impleader. Absent consent or another exception to Rule 1.6, the lawyer could not disclose or use that information to the former clients' disadvantage (Rules 1.9(c), 1.6(a), 1.6(b)), and in some circumstances the inability to use such information could itself preclude the new representation (citing N.Y. State 903 and N.Y. State 901 on the resulting Rule 1.7(a) analysis).

In practice

Under this opinion, and under the New York rules as they stood at the time, the gate is the substantial-relationship test, not the mere fact that former clients will be on the other side. If the new matter does not share a transaction or legal dispute with the prior work and does not put the lawyer's prior confidential information materially in play, the lawyer may proceed without the former clients' consent. The continuing limit is on information: the lawyer may not use or disclose the former clients' confidential information to their disadvantage absent consent or an exception, and where that limit would compromise the new representation, the opinion notes it could bar the matter.

Common questions

Q: Can a lawyer oppose or implead a former client?

A: Yes, if the new matter is not substantially related to the prior representation, even though the positions are materially adverse. The opinion holds that Rule 1.9(a) requires the former client's consent only when the matters are the same or substantially related and the interests are materially adverse.

Q: When are two matters "substantially related"?

A: Under Rule 1.9, Comment [3], when they involve the same transaction or legal dispute, or when a reasonable lawyer would conclude there is a substantial risk that confidential information from the prior representation would materially advance the new client's position.

Q: If the matters are unrelated, can the lawyer use what he learned representing the former clients?

A: No, not to their disadvantage. Absent consent or an exception to Rule 1.6, the opinion says the lawyer may not disclose or use the former clients' confidential information (Rules 1.9(c), 1.6), and in some circumstances that limit could itself preclude the representation.

Background and rules framework

The opinion applies Rule 1.9(a) (Model Rule 1.9) on duties to former clients and its substantial-relationship and material-adversity elements, with Comment [3]'s definition, and Rule 1.9(c) together with Rule 1.6(a) and 1.6(b) (Model Rule 1.6) on the continuing duty not to use or reveal a former client's confidential information.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / NY 1.9(a), 1.9(c) (former clients; substantial relationship; use of information)
• MR 1.6 / NY 1.6(a), 1.6(b) (confidentiality)

Other opinions cited:

• N.Y. State 903 (2012) and N.Y. State 901 (2011): consent to adverse representation does not include consent to use confidential information; resulting Rule 1.7(a) analysis
• N.Y. City 2005-02: merely possessing unusable confidences does not, without more, create a disqualifying conflict

See also

• NY State Bar Op. 924: Attorney as referee in a mortgage foreclosure proceeding
• NY State Bar Op. 960: Suing a former prospective client over repair fees
• NY State Bar Op. 970: Disclosing a deceased client's file to the executor

Source

• Landing page: https://nysba.org/ethics-opinion-922/