Can a lawyer who represented two business partners later sue one of them on behalf of the other?

Plain-English summary

Opinion E-79-7 arose from Attorney A's joint representation of B and C, partners in a business venture who wanted to incorporate. A met with the two men individually and as a group on an extensive basis and drew up incorporation papers, but B and C abandoned the idea and the papers were never executed. B continued operating the business alone under the corporate name and later ended his relationship with A. Nearly a year after the last meeting, C, apparently misinformed about the earlier results, asked A to represent him in an action against B to recover his share of the partnership assets. The question was whether an attorney may represent a client in an action against a former client.

The committee looked to Canons 4 and 5. DR 4-101(B) prohibited revealing or using a former client's confidence or secret to the former client's disadvantage or another's advantage, and EC 4-6 confirmed that the duty to preserve confidences and secrets continues after the employment ends. DR 5-105(A) required declining employment if the lawyer's independent judgment on behalf of a client would likely be adversely affected. The committee, supported by ABA Informal Opinions 1322 and 885, concluded that A may not represent C against his former client B. Because A had acted as counsel to both B and C before the proposed litigation, his duty to both extended beyond the actual employment, and it did not matter that B had terminated the relationship months earlier. The committee said only if an attorney had performed a purely ministerial service, such as filing already-completed incorporation papers, would there be reason to allow later representation of one client against the other; because A had performed various professional and counseling services, undertaking the representation would violate DR 4-101(B), DR 5-105(A), and DR 5-105(B).

Currency note

This opinion was issued in 1979, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canons 4 and 5 (DR 4-101(B), DR 5-105). The current counterparts are SCR 20:1.9 / Model Rule 1.9 (duties to former clients) and SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest). 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 Treat this page as historical context, not current guidance.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: Can a lawyer who represented both partners later take one side against the other?

A: No. The committee concluded that, having counseled both B and C, the lawyer owed a continuing duty to each, so he could not represent one against the other.

Q: Does it matter that the engagement had ended months earlier?

A: No. The committee said the duty to both clients extends beyond the period of actual employment, so the earlier termination did not permit the adverse representation.

Q: Is there any prior service that would not bar later representation?

A: The committee said only a purely ministerial service, such as filing already-completed incorporation papers, would; performing professional and counseling services, as here, barred it.

Background and rules framework

The opinion applied the former Code's confidentiality rule (DR 4-101(B)) and conflict rule (DR 5-105) to a lawyer's prior joint representation of two clients now in dispute. The current counterparts are SCR 20:1.9 / Model Rule 1.9 (former clients) and SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / SCR 20:1.9 (duties to former clients); former Code DR 4-101(B)
• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts); former Code DR 5-105(A), (B)

Other opinions cited:

• ABA Informal Opinions 1322 and 885: representation adverse to a former client

See also

• WI Ethics Op. E-85-8: Representation Adverse to a Former Client
• WI Ethics Op. E-85-9: Foreclosure Against a Former Title-Opinion Client
• WI Ethics Op. E-82-6: Multiple Representation in Automobile Accidents

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-79-7.pdf