Can a lawyer who used to defend insurance companies later sue those same insurers for plaintiffs?

Plain-English summary

A lawyer who had previously defended insurance companies in insurance-coverage matters asked whether he could later represent plaintiffs in suits against some of those same insurers without violating RPC 1.9, and whether undertaking the plaintiff work required full disclosure and written consent from the insurers.

The committee assumed the insurers were former clients with no ongoing representation or expectation. It said that as long as the lawyer is correct that the current matters are not substantially related to his prior representation of the insurers and that no confidences or secrets will be used against the former client, the representation would not appear to violate RPC 1.9, and written informed consent would not appear to be necessary because the matters are not substantially related. The lawyer had stated his new matters would not relate to the claims he previously handled. The committee said that if the claims are not substantially related, RPC 1.9(a) is satisfied and no consent is needed; if the matters are the same or substantially related, further steps must be taken.

The committee added that lawyers owe duties of loyalty and confidentiality and that switching sides would violate those duties, citing WSBA Informal Opinion 1718 for the point that the duty of loyalty includes not using a former client's confidential information to that client's disadvantage in a later representation. It noted that Washington authority on what makes matters "substantially related" under RPC 1.9(a) is sparse, citing State v. Hunsaker, and that relatedness is a matter of degree, quoting Teja v. Saran that the underlying question is whether the lawyer was so involved in the matter that the later representation can be justly regarded as a changing of sides.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. RPC 1.9 kept its number in 2006, but the rule's text and the older "confidences and secrets" terminology used here were revised. 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee made the side-switching question turn on the "substantially related" test in RPC 1.9(a). If the lawyer's prior insurance-defense matters and his proposed plaintiff matters are not the same or substantially related, and no former-client confidences will be used, the committee said the new representation does not violate RPC 1.9 and the insurers' consent is not required. The committee flagged that if the matters are the same or substantially related, further steps are required, and it treated relatedness as a question of degree keyed to whether the lawyer's prior involvement makes the new work a changing of sides.

Common questions

Q: Can a former insurance-defense lawyer sue the same insurers for plaintiffs?

A: The committee said yes if the new matters are not the same as or substantially related to the prior defense work and no former-client confidences will be used against the insurer.

Q: Does the lawyer need the insurers' consent?

A: The committee said no consent is needed if the matters are not substantially related, because RPC 1.9(a) is then satisfied; if they are the same or substantially related, further steps must be taken.

Q: How is "substantially related" decided?

A: The committee said Washington authority is sparse and that relatedness is a matter of degree, asking whether the lawyer was so involved in the earlier matter that the later representation can be justly regarded as changing sides, quoting Teja v. Saran.

Background and rules framework

The opinion interprets RPC 1.9 (Model Rule 1.9, duties to former clients), focusing on subsection (a)'s bar on representing a new client in the same or a substantially related matter materially adverse to a former client. The committee framed the underlying duties as loyalty and confidentiality and used the "substantially related" standard, supported by Washington case law and a prior WSBA informal opinion, to decide when consent is required.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Washington RPC 1.9(a) (duties to former clients; same or substantially related matter)

Cases:

• Teja v. Saran, 68 Wn. App. 793, 846 P.2d 1375 (Wash. Ct. App. 1993), relatedness turns on whether the later representation is a changing of sides
• State v. Hunsaker (Wash. Ct. App. 1994), cited for the point that Washington authority on "substantially related" is sparse

Other opinions cited:

• WSBA Informal Opinion 1718: the duty of loyalty bars using a former client's confidential information to its disadvantage in a later representation

See also

• WA Ethics Op. 2037: Suing a Former Client
• WA Ethics Op. 2045: Phone Call as a Conflict
• WA Ethics Op. 2041: Confidences of a Deceased Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1295

Original opinion text

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

Advisory Opinion: 2049
Year Issued: 2003
RPC(s): RPC 1.9
Subject: Conflict of interest; disclosure; consent

The inquirer asks if an attorney, who previously defended insurance companies in insurance-coverage matters, may later represent plaintiffs in suits against some of those same insurance companies without violating RPC 1.9? In order to undertake representation of the plaintiffs does RPC 1.9 require full disclosure and written consent from the insurance companies?

In answering the inquiry, the committee assumes that the insurance companies are former clients and that no ongoing representation or expectation exists. As long as the inquiring attorney is correct in his statement that the current matter is not substantially related to his previous representation of the insurance company and that no confidences or secrets will be used against the former client, representation would not appear to violate RPC 1.9 and written, informed consent would not appear to be necessary in order to proceed because the matters are not substantially related.

The inquiring lawyer has stated that his new matters “will not relate to the claims” he previously handled for the insurance companies. If the claims are not substantially related, subsection (a) of RPC 1.9 is satisfied and no consent is needed from the insurance companies in order to undertake the new representations. If the matters are the same or substantially related, further steps must be taken.

Lawyers have duties of loyalty and confidentiality. Switching sides would violate those duties. Informal Opinion #1718 (The duty of loyalty includes an obligation not to use confidential information about the former client in the subsequent representation of another client to the former client’s disadvantage.)

The law in Washington on the subject of what constitutes ‘substantially related’ for the purpose of RPC 1.9(a) is sparse.” State v. Hunsaker, (74 Wn. App. 38, 42, 74 Wn. App. 43 (1994).

Relatedness can be a matter of degree. “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” Teja v. Saran, 68 Wn. App. 793, 798, 846 P.2d 1375 (1993).