When is a lawyer's new representation adverse to a former client too closely related to the earlier representation to be ethical?

Plain-English summary

The inquiring attorney had undertaken to defend the Tennessee Consolidated Retirement System in a declaratory judgment action brought by, among others, a former client, challenging recent retirement legislation as unconstitutional "special legislation" that decreased benefits without a corresponding grant and arguing the State was contractually bound to honor the superseded legislation. Six years earlier, the same attorney had represented that same individual, then the client, on a different question under the retirement statute: whether the client's rights had vested after nine years and six months of service rather than the ten years the program administrator argued for. That earlier matter was resolved favorably for the client without litigation, by pointing to an Attorney General's opinion construing the statute's precise wording, and involved no client confidences or secrets. The retirement system had since consistently followed that interpretation, and the nine-and-a-half-year vesting question was not raised in the new litigation.

The opinion applied the framework from the Board's Formal Ethics Opinion 84-F-65, under which a lawyer's continuing duties to a former client are to preserve the former client's confidences, to abstain from attacking the resolution of a matter accomplished for the former client, and to abstain from representing another party in a matter arising out of or closely related to the previous one. The opinion found the former matter's resolution was not at issue in the new case, the defendant's position in the new matter was not inconsistent with the former client's position in the old one, and no confidential information from the former representation was implicated. It then asked whether the two matters were nonetheless substantially related, explaining that this requires examining the scope and subject matter of both representations and whether the new representation is adverse to the matters actually at issue in the former one. Because the former matter turned narrowly on whether the client's benefits had vested under a specific provision, while the new litigation concerned the constitutionality of separate, later legislation, the opinion concluded there was no substantial relationship and no ethical impropriety in the adverse representation. The opinion added, without resolving the questions, that disqualification motions and voluntary withdrawal are matters primarily for the lawyer undertaking the representation, with adverse counsel properly raising the issue only where the conflict clearly calls the fair or efficient administration of justice into question, and cautioned against using such objections as a means of harassment or unjustified advantage.

Currency note

This opinion was issued in 1986, 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.

Common questions

Q: What test did the Board use to decide whether a new representation adverse to a former client was improper?

A: Whether a substantial relationship exists between the former and present matters, examined by comparing the scope and subject matter of both representations and whether the new representation is adverse to the matters actually at issue in the former one.

Q: Why was it proper for the attorney to defend the Retirement System against a former client in this case?

A: The former representation concerned a narrow vesting question resolved under one statutory provision with no confidential information involved, while the new litigation challenged the constitutionality of separate, later retirement legislation; the opinion found the two matters were not substantially related.

Q: Who decides whether a lawyer should withdraw or be disqualified over a former-client conflict?

A: The opinion said resolving such conflicts is primarily the responsibility of the lawyer undertaking the representation, with adverse counsel properly raising the question only where the conflict clearly calls into question the fair or efficient administration of justice, and cautioned against using the objection as a means of harassment.

Background and rules framework

The opinion built on the Board's Formal Ethics Opinion 84-F-65, which set out a former client's continuing protections: preserved confidences, no attack on the prior matter's resolution, and no adverse representation in a substantially related matter. The modern analog is Model Rule 1.9 / Tennessee RPC 1.9 (duties to former clients), whose comment uses a similar substantial-relationship inquiry.

Citations and references

Other opinions cited:

• Tennessee Formal Ethics Opinion 84-F-65 (January 18, 1984) (continuing ethical responsibilities 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. 84-F-65: Former Insurer-Client Conflict
• Tenn. Ethics Op. 89-F-118: Screening Procedures to Avoid Imputed Disqualification (applies this opinion's substantial-relationship test)
• AL Ethics Op. 1994-13: Former-Client Conflicts in Substantially Related Matters
• AL Ethics Op. 1991-42: Suit Against a Former Client

Source

• Landing page: https://www.tbpr.org/ethic_opinions/86-F-104

Original opinion text

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

86-F-104 - Representation adverse to Former Client

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 86-F-104

Inquiry is made concerning the ethical propriety of representation adverse to a former client.

The inquiring attorney undertook to defend the Tennessee Consolidated Retirement System in a declaratory judgment action brought by his former client, and others, to construe their benefits and rights pursuant to the general retirement statute. The plaintiffs seek to have certain provisions of recent retirement legislation declared unenforceable. They assert that the recent statute constitutes "special legislation," decreased benefits with no corresponding grant of benefits, fails to comply with the "Pennsylvania Rule" applicable to such legislation, and assert that the State is obligated by contract to honor the superseded legislation.

Six years earlier the inquiring attorney represented the former client, now one of the plaintiffs, concerning a different portion of the retirement statute. The issue in the former matter was whether the former client's rights in the retirement program had become vested. The inquiring attorney, on behalf of the former client, insisted that his rights became vested after nine years and six months service; whereas the administrator of the retirement program insisted that his rights were not vested until completion of ten years service. The matter was resolved favorably to the former client, without resort to litigation, when the inquiring attorney called attention to an Attorney General's Opinion specifically ruling on the matter consistent with the precise wording of the statute which states, "In computing the length of time of service, fractions of a year or six months or more shall be treated as a full year of service." No client confidences or secrets were involved in the resolution of the matter.

The Retirement System has now consistently followed the Attorney General's Opinion and the precise wording of the statute on the nine years and six months issue, and there is no question about its continuing to do so. Furthermore this issue is not raised in the recent litigation.

The Board has previously addressed the ethical propriety of representation adverse to a former client. Formal Ethics Opinion 84-F-65 issued by the Board on January 18, 1984 states:

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 client---arising out of or closely related to the previous legal matter---.

In the matter now under consideration it appears that the resolution of the question in the former matter is not involved in the instant matter. It further appears that the position of the defendant in the present matter is in no way inconsistent or adverse to the interest or position of the former client in the previous matter. There was no communication of information by the former client of a confidential nature or that may now be used adversely to the interest of the former client.

The remaining question to be resolved is whether the present legal matter is so closely related to the previous legal matter as to create an impropriety.

In deciding whether a substantial relationship between the two legal matters exists, the scope and subject matter of the former and present representations must be examined. It must be determined whether the subsequent representation is adverse to the matters at issue in the previous relationship.

The matter at issue in the previous representation was whether the client's rights had become vested. This matter was successfully resolved in behalf of the former client by insisting that the retirement system follow the precise wording of a portion of the statute.

The matters at issue in the present litigation are whether the general statute is constitutional, constitutes "special legislation," or whether the superseded legislation constitutes a contractual obligation.

It is concluded that there is no substantial relationship between the two legal matters and that the subsequent representation is not adverse to the matters at issue in the previous relationship. Therefore, there is no ethical impropriety in representing the Retirement System adversely to the former client.

The other questions raised by the inquiring attorney are, whether the former client's present lawyer should file a disqualification motion with the Court; and, whether the lawyer should voluntarily withdraw when adverse counsel raises the question of disqualification.

This Ethics Opinion will not attempt to resolve these questions; however, the following comments appear to be appropriate.

Resolving questions of conflicts of interest and impairment of independent professional judgment are primarily the responsibility of the lawyer undertaking the representation. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, adverse counsel may properly raise the question. Caution should be used in raising such questions by objection, for it may be viewed as a misuse of an objection as an unjustified means of obtaining an advantage or as a means of harassment.

This 4th day of August, 1986.

ETHICS COMMITTEE:

C. T. Herndon III, Chairman

Michael E. Callaway

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD