Can a lawyer keep representing clients in one suit when a nominal former client, for whom the lawyer holds no confidences, is adverse to them in an unrelated suit?

Plain-English summary

The committee understood the facts to be as follows. The lawyer represented a group of clients who were defendants in an Idaho action. A lawsuit was then filed against one of these clients in California, and one of the plaintiffs in that California case was another defendant in the Idaho action. Although the lawyer had entered a notice of appearance for that defendant, the lawyer had in fact never had any contact with that client, who was a recluse. The two lawsuits were unrelated.

On those facts, the committee was of the opinion that if the lawyer in fact has no confidences or secrets of the person on whose behalf the lawyer entered the notice of appearance in the Idaho proceeding, and assuming the lawyer is permitted to withdraw from the Idaho action, there would be no violation of RPC 1.9 for the lawyer to continue to represent the other clients in the California action.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule it discusses, RPC 1.9 (conflict of interest; former client), corresponds to Model Rule 1.9 and has since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does entering a notice of appearance for someone make continued adverse representation a former-client conflict?

A: Per the opinion, not on these facts. The committee found no RPC 1.9 violation where the lawyer had no confidences or secrets of the person for whom the notice of appearance was entered and the lawyer is permitted to withdraw from the first action.

Q: What two conditions did the committee attach?

A: The committee conditioned its conclusion on the lawyer having no confidences or secrets of that person, and on the lawyer being permitted to withdraw from the Idaho action.

Q: Does it matter that the two suits were unrelated?

A: The committee took the facts as including that the lawsuits were unrelated, and on that record concluded that continuing to represent the other clients in the second action would not violate RPC 1.9.

Background and rules framework

The opinion applies Washington RPC 1.9 (conflict of interest; former client), corresponding to Model Rule 1.9. The committee made the analysis turn on the absence of client confidences: because the lawyer held no confidences or secrets of the nominal former client (a recluse with whom the lawyer never had contact) and was permitted to withdraw from the first action, continuing to represent the other clients in the unrelated second action would not violate the former-client rule.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.9 (conflict of interest; former client), corresponding to Model Rule 1.9.

See also

• WSBA Ethics Op. 1078: suing a defendant a partner once represented in an unrelated matter
• WSBA Ethics Op. 1158: representing a wife in a dissolution after a partner defended the husband on an unrelated charge
• WSBA Ethics Op. 968: representing someone harmed by a former client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=309

Original opinion text

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

Advisory Opinion: 1229
Year Issued: 1988
RPC(s): RPC 1.9
Subject: Conflict of interest; representation of adverse parties in unrelated lawsuits

[The lawyer represented a group of clients who were defendants in an Idaho action. A lawsuit was filed against one of these clients in California. One of the plaintiffs in that case was another defendant in the Idaho action. Although the lawyer entered a notice of appearance for that defendant, he had in fact never had any contact with the client, as he was a recluse. The lawsuits were unrelated.] The Committee was of the opinion that, based upon the facts and circumstances as set out in your letter, if you in fact have no confidences or secrets of the person on whose behalf you entered a Notice of Appearance in the Idaho proceeding, and assuming you are permitted to withdraw from the Idaho action, there would be no violation of RPC 1.9 for you to continue to represent your other clients in the action in California.