Advisory Opinion:
2104
Year Issued:
2005
RPC(s):
RPC 1.6(a), 1.7(b), 1.9(a), Formal Op 192
Subject:
Disclosure of former client`s identity; need for former client`s consent
The inquirer stated that a former client of his declined to authorize the attorney to disclose the prior representation of the former client in a DUI case to a current client nor to sign a waiver that would authorize disclosure. The former client is an eye witness to a murder allegedly committed by the current client. The attorney and former client both agree that the attorney acquired no confidences or secrets in connection with the prior representation.
The committee opined that with respect to the current client the attorney does not need the consent of the former client to disclose the existence of the prior representation or the subject matter. “[T]he identities of a lawyer`s clients and the parties adverse thereto, and a description of the nature of the matter, will typically constitute neither confidences nor secrets. See, e.g., State v. Sheppard, 52 Wn. App. 707, 703-14, 763 P.2d 1232 (1988); cf. Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960).” See also Formal Opinion 192 (Sale of a Law Practice).
The two representations do not involve “the same or a substantially related matter in which [the current client’s] interests are materially adverse to the interests of the former client” so no written consent is required under RPC 1.9(a).
A waiver is required to disclose confidences or secrets. RPC 1.6(a). The inquiring attorney should consider carefully whether he acquired relevant confidences in the prior representation. “Confidences” is defined to include information “the disclosure of which would be embarrassing or would be likely to be detrimental to the client”, RPC Terminology. If the DUI matter might be relevant and/or admissible with respect to the credibility of the witness/former client in the murder case, then the attorney is constrained by RPC 1.9(b) from undertaking the representation of the murder defendant if he is “materially limited” within the meaning of RPC 1.7(b) by his inability to use confidences to test the credibility of the testimony of the former client. If, as the attorney and former client agree, there are no relevant confidences and secrets arising from the prior representation that are relevant to the current representation, then the attorney may undertake the current representation.
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