Ethics Question of the Week: Can I represent someone I had a previous case against?
Q. Many years ago I represented a husband in a divorce. The ex-wife just came to me and wants me to represent her in a personal injury matter. Can I?
A. RPC 1.9 prohibits a lawyer from representing someone in a matter that is the same or substantially related to a matter in which the lawyer previously represented a client. Although there are many facets of this rule when applying it to specific situations, one of the major concerns is to protect confidential information that may have been gained in the prior representation that could be used to the detriment of the former client.
For a discussion of this point see In re Estate of Klehm, 363 Ill.App.3d 373, 299 Ill.Dec. 825 (1st Dist. 2006). View the case on Fastcase
ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.
[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]
Member Comments (2)
What? an opposing party that does not hate your guts and wants to hire you? You must have been too soft in litigation. I'm not sure the question or the concern is even real.
Excellent comment by Joanne Denison. But the generic reference to does not necessarily answer the question. See also: Marriage of Hines, a case that I appealed because of the trial court disqualified me. The facts of that case involved a single interview with my partner and father and the husband coming to me years later in a post-decree matter. The key underlying case is Schwartz v. Cortelloni, 177 Ill. 2d 166, 179 (1997), to determine whether an attorney should be disqualified. Rule 1.9. The black letter law, " Therefore, a party seeking disqualification of counsel based on Rule 1.9 bears the burden of proving the prior attorney-client relationship and "establishing that the present and former representations are substantially related." Schwartz, 177 Ill. 2d at 174, 178. In determining whether the two representations are substantially related, the court must consider the following: (1) the scope of the former representation; (2) whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters; and (3) whether the information is relevant to the issues raised in the litigation pending against the former client. See Schwartz, 177 Ill. 2d at 178."