Can a lawyer take a client they have previously opposed in court?

April 30, 2010 8:53 AM

Is it legal or ethical for a civil lawyer in California to take a client they have previously opposed in court?

I was involved in a civil suit a while ago and I was impressed with the lawyer that the other side brought in. Now I'm looking at the prospect of another, completely unrelated, civil case, and I'd like to hire the lawyer who opposed me previously. Is there a problem with that?

Also, there is a very slight chance the earlier case could be reopened for another hearing. Would that affect this lawyer's ability to take me on as a client?

posted by anonymous to law & government (7 answers total)

IANAL- but in my experience, that's never been an option. I really loved my exhusband's lawyer, but when I talked to him about a separate matter, he said that unfortunately he wasn't able to help me out- though he did send me in the direction of someone great.
posted by Zophi at 8:57 AM on April 30, 2010

Also, there is a very slight chance the earlier case could be reopened for another hearing. Would that affect this lawyer's ability to take me on as a client?

Yes. IANAL.
posted by Inspector.Gadget at 9:02 AM on April 30, 2010

California Rules of Professional Conduct 3-310(C) covers exactly this circumstance:

"A member [of the California bar] shall not, without the informed written consent of each client: Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter."

So, since there's a chance the earlier case could be reopened, the lawyer is likely still representing the first client. In that case, he or she would have to obtain the informed, written consent of both the first client and you.

The lawyer should know the ethical rules, of course, and he or she can always contact the California Bar for an ethics opinion before engaging in anything questionable.
posted by jedicus at 9:04 AM on April 30, 2010

IANYL, and you're right to be worried about this. But you might still ask the lawyer -- these ethical rules are his (her) responsibility, not yours, and he will know them better.

(This is pure speculation, and not legal advice.)
posted by grobstein at 9:06 AM on April 30, 2010

This is a typical "short answer yes with an if, long answer no with a but..." legal question. Large firms, and very good small firms, have a conflicts department which is wholly dedicated to determining whether or not they can represent someone, based upon representations of other clients in the past. It is the attorney's responsibility to determine whether or not he can represent you, within the rules of professional conduct. Chances are, he'll just decline, having directly opposed you in another case, if only because it's much easier than vetting representation through the conflicts process.
posted by crush-onastick at 9:22 AM on April 30, 2010

IANYL either. I agree that it makes sense to talk to the lawyer you want to hire. Is it possible for the lawyer to represent you in a new matter? As with many legal questions, the answer is, "it depends."

Part of the risk calculus here is what the actual status of the earlier case is. Is it truly closed? (And what you as the client may consider "over" may not square with whether the lawyers consider it "closed" or that prior representation "over".)

Also, he will have to consider what the likelihood of the case "reopening" is and, if that happens, what he would lose by essentially forcing his other client to find a new lawyer. (In other words, how big/important a client was the adverse party in that earlier case?) And, how likely are you to be adverse to that client in future (unrelated) matters. In some situations, the lawyer may feel obliged to ask the adverse party to consent.

Conflicts are complicated. They are ESPECIALLY complicated and laden with red tape in large law firms.
posted by QuantumMeruit at 10:21 AM on April 30, 2010

They probably wouldn't want to represent you if the other case could end up being reopened, but if you really liked the lawyer, you could ask them or their firm to recommend you someone that they like/have worked with before. I don't know if there are any ethical or moral rules against that, but I have a feeling there isn't, because lawyers in the same city in the same specialty are often connected in various ways.
posted by ishotjr at 10:21 AM on April 30, 2010