February 2007

RPC 1.9 (Duties to Former Clients)

Suing Ex-Clients May Be Possible, But It Will Be Ugly

By Phil Pattee, Assistant Bar Counsel

So there you are sitting in your office when a potential client walks in and tells you a sad story of woe.  You think that the client has been harmed and probably has a decent cause of action.  It also looks like she has a bunch of damages and the bad guy has deep pockets.

Your day is looking brighter.

So you sign up the client and begin making preparations to sue Mr. Bad Guy.  But something’s amiss, something about the facts or the parties or something.  That something, you fear, will derail your dreams of a successful outcome and the resulting payoff.

Then it hits you.  The reason Mr. Bad Guy seems familiar is because you represented him in the past.  You handled his criminal and divorce cases, and you remember that he’s not a nice person.  But does the former representation prevent you from suing him on behalf of a new client?

Maybe, but maybe not.

Rule of Professional Conduct 1.9 (Duties to Former Clients), formerly Supreme Court Rule 159, states that unless a former client provides informed consent, a lawyer shall not represent another person in the same or a substantially related matter in which the clients’ interests are materially adverse.

Furthermore, consent from the former client must be confirmed in writing.  Of course, a former client will rarely provide such consent, if for no other reason than just to be obstinate.  And it’s guaranteed that his new attorney would advise against consent.

But does the former representation preclude subsequently serving as counsel opposing the ex-client?

The answer turns on whether the new representation is “the same or a substantially related matter.”  If not, then an attorney may be able to serve as opposing counsel against a former client. 

When determining whether you’re dealing with a same or substantially related matter, examine the problem from a detached perspective.  Place yourself in the shoes of the person or entity that ultimately might make that determination.  Pretend that you are a judge, or you serve on a disciplinary panel, or you sit on the Nevada Supreme Court. 

If, from that point of view, you cannot say that the new representation absolutely is not the same or similar, walk away.

If the representation is not prohibited by RPC 1.9, remember that you cannot use privileged information learned in the prior representation against the former client.  It’s not good to impeach a former client with secrets that you learned from him.  Extremely bad form.

But even if you can oppose the former client, it’s a good idea to avoid the whole situation if possible.  Everybody – judges, attorneys, parties – will question whether you are improperly using confidential information.  Your former client will be yelling the loudest.

It’s also guaranteed that you will have to deal with a motion to disqualify.  If the underlying facts were even close to being “same or similar,” opposing counsel would fear a malpractice claim if a motion to disqualify you was not pursued.

So, if possible, try to avoid taking stances against former clients.  Even if you can do it, the monetary gain probably won’t adequately compensate you for the colossal headache that would result.  Err on the side of caution and just walk away.