Can a lawyer oppose a person who was the codefendant of a prior client, when the lawyer never gained that person's confidences?

Plain-English summary

The committee understood that the lawyer had represented a co-defendant who had a cross-claim against A, and that the lawyer therefore shared no confidences or secrets of A during that representation. On that understanding, the committee concluded that the Rules of Professional Conduct would not prohibit the lawyer from now representing parties adverse to A.

The committee added a caveat about a protective order. It said it did not fully understand the lawyer's statements regarding the relevant protective order, and suggested that, assuming such an order exists, the lawyer should communicate with the former law firm to learn its terms, which may be applicable to the lawyer.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.7 and RPC 1.9 on conflicts of interest and duties to former clients were 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 Treat this page as historical context, not current guidance.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 take a case adverse to someone who was a codefendant of the lawyer's former client?

A: On these facts, yes. The committee concluded that because the lawyer shared no confidences or secrets of A, the rules would not prohibit representing parties adverse to A.

Q: Why did the absence of confidences matter?

A: The committee's conclusion rested on its understanding that the lawyer had represented a co-defendant who had a cross-claim against A, so the lawyer obtained no confidences or secrets of A.

Q: What did the committee say about the protective order?

A: The committee said it did not fully understand the statements about the protective order and suggested that, assuming such an order exists, the lawyer communicate with the former law firm to learn its terms, which may apply to the lawyer.

Background and rules framework

The opinion interprets Washington RPC 1.7 and RPC 1.9 as they stood in 1986 (corresponding to Model Rules 1.7 and 1.9). The committee treated the dispositive question as whether the lawyer had obtained confidences or secrets of A; finding none, because A had been the adverse cross-claimant against the lawyer's actual client, it saw no bar to the new adverse representation, subject to the terms of any applicable protective order.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.7 (conflict of interest; general rule), corresponding to Model Rule 1.7.
• Washington RPC 1.9 (duties to former clients), corresponding to Model Rule 1.9.

See also

• WSBA Ethics Op. 982: a substantially related prior representation
• WSBA Ethics Op. 975: suing a former client in an unrelated matter
• WSBA Ethics Op. 950: representation adverse to a former client in unrelated litigation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=97

Original opinion text

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

Advisory Opinion: 986
Year Issued: 1986
RPC(s): RPC 1.7; 1.9
Subject: Conflict of interest; representation adverse to codefendant of prior client

Based upon the Committee's understanding that you represented a co-defendant with A who had a cross-claim against A, and that therefore you shared no confidences or secrets of A during your representation of the co-defendant, the Rules of Professional Conduct would not prohibit you from now representing parties adverse to A. The Committee did not fully understand your statements regarding the relevant protective order, and suggested that, assuming such an order exists, you should communicate with your former law firm to learn its terms which may be applicable to you.