October 20, 1983
A lawyer may bring suit against a former client so long as business relations between the lawyer and client have ceased, the subject matter of the representation is not substantially related to that of the former representation, and the lawyer has obtained no confidential communications or secrets in the course of representation which would be embarrassing to or could be used to the detriment of the former client.
References: MCPR DR 4-101(A) and (B); Op 7; CI-250, CI-435, CI-541, CI-619, CI-668.
A lawyer represents a manager of an apartment complex in a rent action brought by the complex owner. The lawyer previously represented the owner on assault charges.
The general rule regarding representation against former clients was stated in CI-250:
"There is no ethical prohibition against representing a client against a former client . . . provided the business relations between the lawyer and former client . . . have ceased.
"As stated in Op 7, the representation would be improper if the lawyer had represented the former (client) involving the same subject matter or been in a position to gain information on which to proceed in the present case. This would be a breach of the confidential relationship."
In accord, CI-541, CI-435.
The facts of an individual case must determine whether representation is appropriate. In the present inquiry, it appears that the legal issues are not substantially related and that the relationship with owner has ceased. It should noted, however, that substantially related factual issues as well as legal issues may preclude the lawyer from representing a former client. The basis for this requirement may be found in MCPR DR 4-101(B), which provides:
"Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
"(1) Reveal a confidence or secret of a client.
"(2) Use a confidence or secret of a client to the disadvantage of the client.
"(3) Use a confidence or secret of a client for the advantage of himself or of a third person, unless the client consents after full disclosure.
Secrets and confidences are broadly defined by MCPR DR 4-101(A):
"Confidence refers to information protected by the lawyer-client privilege under the applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.
The lawyer therefore must consider whether information was received in the course of the former representation which now could in any way be used to the owner's detriment. It appears that the assault case and the rent case are sufficiently dissimilar factually that it is likely that information gained in the course of the earlier representation could not be used in the present case. If so, the lawyer may continue the present representation.
The lawyer should consider two potential areas where the lawyer might have obtained information which could be used to the disadvantage of the former client. First, if the lawyer received information regarding the owner's financial status it could be helpful in effectuating a settlement or recovery. CI-619. Additionally, "evidence of credibility, if obtained, could be of obvious relevance in the current case." CI-619. The lawyer must carefully review the information received in the course of the former representation and determine whether it can be used to the detriment of the former client, considering the broad language of the term "secret." Any doubts as to whether the representation will create ethical difficulties should be resolved against undertaking the representation. CI-668.