Can a firm that once defended a business in a collection case later represent a different client suing or defending against that former client in an unrelated dispute?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-85-8 addressed law firm Z, a partner of which had in 1982 defended a farm implement dealership against the grantor of the dealership in a collection action, becoming familiar with the dealer's bookkeeping; the firm had not represented the dealer since. The dealership was now trying to collect a bill from X for a milking system, and X wished to defend (claiming the work was incomplete and the system defective, causing stray-voltage damage) and to sue for the damage. The question was whether firm Z could represent X both defensively and as plaintiff.
The committee restated the general rule from its Formal Opinion E-76-4 that a lawyer cannot oppose a former client in a related matter even if the lawyer acquired no harmful knowledge (citing Marketti v. Fitzsimmons and Model Rule 1.9(a)). It explained that whether a matter is related depends on the facts: where a lawyer was directly involved in a specific transaction, later adverse representation is clearly barred, but a lawyer who recurrently handled a type of problem for a former client is not precluded from later handling a wholly distinct problem of that type adverse to the former client. The underlying question is whether the lawyer was so involved that the new representation can be regarded as changing sides.
Applying that test, the committee concluded the proposed representation was permissible because it appeared to involve a wholly distinct problem rather than a related matter. It cautioned that information acquired in the former representation may not be used to the former client's disadvantage (former SCR 20.21(6)), though generally known information may be used, and noted that the current client should be informed of the previous representation of the dealership (SCR 20.23(4)(a)).
Currency note
This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Duties to former clients and the substantial-relationship test are now governed by SCR 20:1.9 / Model Rule 1.9. 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: When can a lawyer take a matter against a former client?
A: The committee applied the substantial-relationship test: a lawyer may not oppose a former client in a related matter, but may handle a wholly distinct matter that does not amount to changing sides.
Q: Does prior knowledge of the former client's business bar the new case?
A: The committee concluded not by itself; information from the former matter may not be used to the former client's disadvantage, but generally known information may be used and a wholly distinct matter is permissible.
Q: Should the new client be told about the prior representation?
A: The committee stated that the current client should be informed of the previous representation of the former client.
Background and rules framework
The opinion interpreted the former Code's duties to former clients (SCR 20.21(6) on continuing confidentiality and SCR 20.23(4)(a) on disclosure to the current client) and Model Rule 1.9(a), applying the substantial-relationship and changing-sides analysis. The analysis is now governed by SCR 20:1.9 / Model Rule 1.9.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.21(6), 20.23(4)(a) / Model Rule 1.9 (duties to former clients) (former Code provisions)
Cases:
- Marketti v. Fitzsimmons, 373 F. Supp. 673 (W.D. Wis. 1974)
Other opinions cited:
- Wisconsin Formal Op. E-76-4
See also
- WI Ethics Op. E-85-9: Foreclosure Against a Former Title-Opinion Client
- WI Ethics Op. E-87-3: Former House Counsel Against a Former Corporate Employer
- WI Ethics Op. EF-20-02: Examining a Current or Former Client as an Adverse Witness
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-8.pdf
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