Can a lawyer represent someone harmed by a former client, when the new case turns on the former client's conduct?

Plain-English summary

The committee addressed a lawyer who had previously represented a client in a mental commitment hearing and was now asked to represent a different party, in an action against the state for negligent release of the prior client, who was subsequently harmed by the prior client's actions. The committee concluded that Rule 1.9 would let the lawyer undertake the new representation only with the consent of the previous client after full disclosure.

The committee was concerned, however, that obtaining such consent from the previous client could be detrimental to his interests. On that basis the committee concluded the lawyer should decline to undertake representation of the new client.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.9 on duties to former clients, including its consent requirements, 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 Treat this page as historical context, not current guidance.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: Can a lawyer sue on behalf of a person harmed by the lawyer's own former client?

A: The committee concluded that RPC 1.9 would allow it only with the consent of the previous client after full disclosure.

Q: Why did the committee say the lawyer should decline rather than seek consent?

A: The committee was concerned that obtaining consent from the previous client could be detrimental to his interests, and on that basis concluded the lawyer should decline the new representation.

Background and rules framework

The opinion interprets Washington RPC 1.9 as it stood in 1986, the rule on duties to a former client (corresponding to Model Rule 1.9). The committee applied it where a new matter, an action against the state for negligently releasing the former client, would turn on the conduct of that former client, and identified consent after full disclosure as the only path, while noting that seeking consent could itself harm the former client.

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. 962: a former-client conflict between adverse claimants to a death claim
• WSBA Ethics Op. 950: representation adverse to a former client in unrelated litigation
• WSBA Ethics Op. 957: conflict adverse to an entity the lawyer helped form

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=79

Original opinion text

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

Advisory Opinion: 968
Year Issued: 1986
RPC(s): RPC 1.9
Subject: Conflict of interest; representation of client who was harmed by former client

You inquire whether having previously represented a client in a mental commitment hearing you could now represent a different party [in an action against the state for negligent release of the prior client] who was subsequently harmed by the actions of your previous client. The Committee was of the opinion that Rule 1.9 of the Rules of Professional Conduct would require that you could only undertake the representation of the new client with the consent of your previous client after full disclosure. The Committee was concerned, however, that obtaining such consent from your previous client could be detrimental to his interests, and therefore you should decline to undertake representation of the new client.