Vol. 76, No. 2, February
2003
Suing a Former Client
Lawyers can represent someone against a former
client, but only if certain conditions are met.
by Dean R. Dietrich
Dean R. Dietrich,
Marquette 1977, of Ruder, Ware & Michler L.L.S.C., Wausau, is chair
of the State Bar Professional Ethics Committee.
Question
I have often been told that I can represent someone who is suing a
former client of mine if the legal matter is different. What are the
conditions for determining whether I can sue a former client?
Answer
You are right that you may represent a new client who is suing a
former client, but there are certain conditions that must be met first.
SCR 20:1.9 of the Wisconsin Supreme Court Rules of Professional Conduct
addresses conflicts of interest with a former client. Under this rule, a
lawyer may not represent another person "in the same or a
substantially related matter" when that person's interests are
"materially adverse" to the interests of a former client. As always,
this representation can occur if the former client consents in writing
after consultation to allowing the lawyer to represent another person in
a matter against the former client.
A
determination of whether you may represent a new client in a matter
against a former client depends upon whether the matter is "the same or
a substantially related matter" and whether the interests of the new
client are "materially adverse" to the interests of the former client.
Deciding if the interests are "materially adverse" will require the
lawyer to determine the nature and extent of the controversy and the
conflicting interests or goals of the new client compared to the likely
interests and goals of the former client. Most often, the fact situation
in a litigation matter will present an obvious conclusion as to whether
the interests of the new client are adverse to the interests of the
former client.
The more difficult determination is whether the matter for which the
lawyer is providing representation to the new client is "the same or
substantially related" to the matter for which the lawyer provided
services to the former client. The recent ABA Commission on Professional
Ethics (known as Ethics 2000) recommended that new language be added to
the Comment on Model Rule 1.9 that would provide further guidance
to lawyers in determining whether a matter is "the same or substantially
related" to the matter of the former representation. The Ethics 2000
Commission stated:
"Matters are 'substantially related' for purposes of this Rule if
they involve the same transaction or legal dispute or if there otherwise
is a substantial risk that confidential factual information as would
normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter."
The Comment also provides that information that has been disclosed to
the public or to other parties that is adverse to the former client
would not be used to disqualify the attorney from representing the new
client. The same is true of government information that the lawyer is
impliedly authorized to use or disclose or that is known to persons
outside the governmental agency involved. Another relevant consideration
in determining whether the second representation is substantially
related to the first representation is whether information acquired
during the prior representation has since become obsolete. In the case
of a client that is an organization, the Comment suggests that general
knowledge of the client's policies and practices ordinarily would not
preclude a subsequent representation, but knowledge of specific facts
gained in a prior representation that are relevant to the matter in
dispute would likely preclude the representation of the new client
against the former organizational client.
The Comment to Model Rule 1.9 provides two examples to emphasize the
determination of a substantially related matter:
"A lawyer who has represented a business person and learned extensive
private information about that person may not then represent that
person's spouse in seeking a divorce"; and
"A lawyer who has previously represented a client in securing
environmental permits to build a shopping center is precluded from
representing neighbors seeking to oppose rezoning of the property on the
basis of environmental considerations; however, the lawyer would not be
precluded, on the grounds of substantial relationship, from defending a
tenant of the completed shopping center in resisting eviction for
nonpayment of rent."
Court cases throughout the country differ on whether a lawyer
representing a business person is precluded from representing that
person's spouse in a divorce proceeding. Recent decisions have allowed
such representation, provided the information learned by the lawyer in
the prior representation of the business person is information that
generally would be discoverable or disclosed during the divorce
proceedings.
Under the Wisconsin Supreme Court rules regarding conflicts with
former clients, lawyers must be careful to analyze the nature of their
prior representation of the former client and make sure that the
representation of the new client is not in a same or substantially
related matter. If the lawyer fails to do so, it is likely the lawyer
will be disqualified from representing the new client unless the former
client consents in writing after consultation.
Wisconsin
Lawyer