Must a firm withdraw from a case against a party who earlier delivered documents to the firm when it was consulted on a different matter?

Plain-English summary

The committee was of the opinion that, assuming an attorney-client relationship had been established at the time the party now adverse to the client delivered documents to a member of the firm, RPC 1.9 would not compel the firm's withdrawal from the pending proceeding, because it was not substantially related to the matter in which the firm had previously been consulted.

The committee added that it did not appear that the documents delivered to the firm constituted confidences or secrets.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.9 on duties to former clients was later renumbered and amended. Treat this page as historical context, not current guidance.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: Does a prior consultation by a now-adverse party require the firm to withdraw?

A: Per the opinion, not on these facts. Assuming an attorney-client relationship existed when the documents were delivered, the committee was of the opinion that RPC 1.9 would not compel withdrawal because the pending proceeding was not substantially related to the earlier matter.

Q: What about the documents the party had delivered to the firm?

A: The committee was of the opinion that it did not appear the documents constituted confidences or secrets.

Q: What was the key factor in the analysis?

A: The committee turned on whether the pending proceeding was substantially related to the prior matter; finding it was not, it concluded RPC 1.9 did not require withdrawal.

Background and rules framework

The opinion applies Washington RPC 1.9 on a lawyer's duties to a former client, corresponding to Model Rule 1.9. The committee's analysis turned on the substantial-relationship test between the prior consultation and the pending proceeding, and on whether the documents delivered amounted to confidences or secrets.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.9 (duties to former clients), corresponding to Model Rule 1.9.

See also

• WSBA Ethics Op. 950: representation adverse to a former client in unrelated litigation
• WSBA Ethics Op. 986: adverse to prior clients and a codefendant
• WSBA Ethics Op. 996: imputed disqualification when a prior firm consulted the opposing party

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=167

Original opinion text

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

Advisory Opinion: 1056
Year Issued: 1987
RPC(s): RPC 1.9
Subject: Conflict of interest; receipt of documents from party later adverse to client

The Committee was of the opinion that, assuming that an attorney-client relationship had been established at the time the party now adverse to your client delivered documents to a member of your law firm, RPC 1.9 would not compel your withdrawal from the pending proceeding because it is not substantially related to the matter in which your firm had previously been consulted. In addition, it does not appear to the Committee that the documents delivered to your firm constitute confidences or secrets.