Can a lawyer who once defended an insurance company in a coverage claim later represent insureds suing that same company for policy benefits in a class action?

Currency note

This opinion was issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

An attorney asked whether he could represent several insureds in a class action against an insurance company for policy benefits, having represented the parent insurance company in defending a similar claim ten years earlier. The opinion answered by quoting Formal Ethics Opinion 81-F-9, which had quoted Autry v. State, 430 S.W.2d 808, for the principle that "attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties," and that "[w]hen an attorney has once been engaged and receives the confidences of his client, he cannot enter the services of those whose interests are adverse to that of his client or former client. The rule is a rigid one and it is well that it is so."

The opinion further quoted Formal Ethics Opinion 81-F-9's holding that "[t]he duty or loyalty by an attorney to his client with respect to matters as to which the attorney acted as counsel survive the formal conclusion of the attorney-client relationship to the extent that, having represented a party to a transaction, the attorney may not thereafter represent any other party in an action against his former client arising out of or closely related to the transaction." It identified three continuing duties to a former client: to keep preserving the former client's confidences and secrets; to abstain from attacking the resolution of any legal matter accomplished on the former client's behalf; and to abstain from representing another party in an action involving the former client (or its successor or receiver) arising out of or closely related to the matters the attorney previously handled. Applying that framework, the opinion concluded it is improper to represent the insureds in the class action against the company.

Common questions

Q: Does a lawyer's duty to a former client end when the representation is over?

A: No. Quoting Formal Ethics Opinion 81-F-9, this opinion holds that "[t]he duty or loyalty by an attorney to his client with respect to matters as to which the attorney acted as counsel survive the formal conclusion of the attorney-client relationship."

Q: What duties does a lawyer continue to owe a former client?

A: Three: to continue preserving the former client's confidences and secrets; to abstain from attacking the resolution of any matter accomplished on the former client's behalf; and to abstain from representing another party in an action involving the former client (or its successor or receiver) arising out of or closely related to the matters previously handled.

Q: Does a ten-year gap between the two representations cure the conflict?

A: No. The opinion found it improper to represent the insureds "after having ten years previously represented the parent insurance company in defense of a similar claim," without treating the time gap as resolving the conflict.

Background and rules framework

The opinion applied Formal Ethics Opinion 81-F-9's standard for an attorney's continuing duties to a former client, which in turn quoted Autry v. State, 430 S.W.2d 808. No Disciplinary Rule is cited by number in this opinion's own text. The modern correlate is Model Rule 1.9 (duties to former clients), cited here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Cases:

• Autry v. State, 430 S.W.2d 808, attorneys cannot represent conflicting interests or undertake inconsistent duties

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-9, continuing duties of loyalty and confidentiality owed to a former client

See also

• Tenn. Ethics Op. 81-F-9: A Lawyer Cannot Sue a Former Client on a Related Matter
• Tenn. Ethics Op. 86-F-104: Substantial Relationship Test for Former-Client Conflicts

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-65

Original opinion text

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

84-F-65 - Representation adverse to former client

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 84-F-65

Inquiry is made concerning the propriety of representing several insureds in a class action against an insurance company in a claim for policy benefits after having ten years previously represented the parent insurance company in defense of a similar claim.

Formal Ethics Opinion 81-F-9, quoting Autry v. State, 430 SW 2d 808, stated:

It has long been firmly established, both in the Canons of Professional Ethics and by judicial opinions, that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been engaged and receives the confidences of his client, he cannot enter the services of those whose interests are adverse to that of his client or former client. The rule is a rigid one and it is well that it is so.

Formal Ethics Opinion 81-F-9 further held:

The duty or loyalty by an attorney to his client with respect to matters as to which the attorney acted as counsel survive the formal conclusion of the attorney-client relationship to the extent that, having represented a party to a transaction, the attorney may not thereafter represent any other party in an action against his former client arising out of or closely related to the transaction.

The continuing ethical responsibilities of an attorney to a former client are:

(i) To continue to preserve the confidences and secrets of the former client;

(ii) To abstain from attacking the resolution of any legal matter accomplished on behalf of the former client; and

(iii) To abstain from representing another party in an action involving the former corporate client, successor or receiver arising out of or closely related to the previous legal matters handled by the attorney.

It is improper to represent several insureds in a class action against an insurance company in a claim for policy benefits after having ten years previously represented the parent insurance company in defense of a similar claim.

This 18th day of January, 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

F. Evans Harvill

William R. Willis

APPROVED AND ADOPTED BY THE BOARD