Opinion 2037

This inquiry concerns whether the continued representation of an adjoining land owner in a dispute over an easement violates the Rules of Professional Conduct. In 1996, the attorney represented a party concerning a purchase and sale agreement for the purchase of real estate. This transaction required only one consultation. The purchase and sale agreement was the only transaction in which the attorney represented that party. The files concerning the transaction have been destroyed after five years in archives, as part of the usual course of business for the attorney. In 2003, the adjoining property owner contacted the attorney to represent him in an action to reform the deed on the property which was sold to the first party`s predecessor interest by the adjoining property owner. The reformation concerns whether the recorded easement should have been nonexclusive or completely private. The only advice to the first party concerning the easement was limited to what was in the public record (the existence of the easement) and contained no information on any error in the drafting of the deed to the first party`s predecessor in interest. The issue of whether the attorney`s continuing representation of the adjoining owner is an ethical violation is controlled by RPC 1.9.

In pertinent part, RPC 1.9 provides, "A lawyer who formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person`s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation and a full disclosure of the material facts; or (b) use confidences or secrets relating to the representation to the disadvantage of the former client, except as rule 1.6 would permit. The dispositive issue here is whether the dispute concerning the reformation of the easement from a nonexclusive to a private easement is "the same or a substantially related matter" in which the adjoining property owner`s interests are materially adverse to the interest of the first party. It appears to the committee that these matters are substantially related and the former client has not consented in writing after a consultation with the attorney and a full disclosure of the material facts, then a violation of RPC 1.9 has occurred.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.