Opinion 1718

[The lawyer worked for a corporation in both the legal department and real estate department. He was offered a general counsel position with a consulting company that assists companies such as his former employer with real estate holdings.] The Committee decided that a lawyer's duty to preserve a client's confidences and secrets does not end with the termination of the attorney-client relationship. There is a continuing duty of loyalty to a former client that precludes the representation of 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." RPC 1.9(a). A former client may, however, waive the conflict. In order for the consent to be valid, Washington's rule requires that it be "in writing after consultation and a full disclosure of the material facts." 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 inquiring attorney's role as general counsel to a consulting company would only be prohibited if he were representing the consulting company (or one of its clients) in a matter that was substantially related to something he worked on for the former client and if the consulting company's interests were "materially adverse" to the interests of the former client. Based on the facts offered, this appears to be unlikely. Nevertheless, the attorney should alert the consulting company to the issue.

The inquiring attorney is also prohibited from using confidences or secrets relating to his representation of the former client to the disadvantage of the former client. Washington's rule deletes the exception in the Model Rule that would permit the use of confidential information that has become generally known.

To the extent that the inquiring attorney seeks to draw some distinction between working in his former client's law department and working in his former client's real estate department, there is no distinction. Any secrets that he learned in either place would be protected under RPC 1.9 and 1.7.

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.