Note that the Rules of Professional Conduct were substantially revised in 2006. The language and citations in any Advisory Opinion issued prior to this date may not be consistent with the current rules.
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Conflict of interest; disclosure; consent
The inquirer asks if an attorney, who previously defended insurance companies in insurance-coverage matters, may later represent plaintiffs in suits against some of those same insurance companies without violating RPC 1.9? In order to undertake representation of the plaintiffs does RPC 1.9 require full disclosure and written consent from the insurance companies?
In answering the inquiry, the committee assumes that the insurance companies are former clients and that no ongoing representation or expectation exists. As long as the inquiring attorney is correct in his statement that the current matter is not substantially related to his previous representation of the insurance company and that no confidences or secrets will be used against the former client, representation would not appear to violate RPC 1.9 and written, informed consent would not appear to be necessary in order to proceed because the matters are not substantially related.
The inquiring lawyer has stated that his new matters “will not relate to the claims” he previously handled for the insurance companies. If the claims are not substantially related, subsection (a) of RPC 1.9 is satisfied and no consent is needed from the insurance companies in order to undertake the new representations. If the matters are the same or substantially related, further steps must be taken.
Lawyers have duties of loyalty and confidentiality. Switching sides would violate those duties. Informal Opinion #1718 (The duty of loyalty includes an obligation not to use confidential information about the former client in the subsequent representation of another client to the former client’s disadvantage.)
The law in Washington on the subject of what constitutes ‘substantially related’ for the purpose of RPC 1.9(a) is sparse.” State v. Hunsaker, (74 Wn. App. 38, 42, 74 Wn. App. 43 (1994).
Relatedness can be a matter of degree. “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” Teja v. Saran, 68 Wn. App. 793, 798, 846 P.2d 1375 (1993).