Ethics Opinion 390

Representation and Privilege Issues in Context of Prior Work

A lawyer’s prior work for a client occasionally becomes an issue in subsequent litigation or other representation on behalf of the same client.¹ When this situation arises, the lawyer must consider whether a conflict exists that prevents the lawyer from taking on or continuing the representation, or whether to seek the client’s informed consent to a conflict. Among other rules of professional conduct, D.C. Rules of Professional Conduct 1.7(b)(4), 1.7(c), and 3.7 may apply. Under Rule 1.7(b)(4), a lawyer cannot take on a representation or continue to represent a client in an ongoing matter if the lawyer’s personal interests will adversely affect the lawyer’s professional judgment on behalf of the client. Rule 1.7(c), however, may permit the lawyer to take on the representation or continue the representation in certain situations, notwithstanding the proscription of Rule 1.7(b)(4). Further, under Rule 3.7, absent limited circumstances, a lawyer cannot advocate for a client at a trial in which the lawyer is likely to be a necessary witness.  ²

Attorney-client privilege issues arising in litigation may implicate a lawyer’s prior work for a client. By way of example, the client may be able to raise an advice of counsel defense or otherwise attempt to negate claims against the client based upon, in whole or in part, the prior work performed by the lawyer, where raising such a defense may require or counsel that the client waive attorney-client privilege in whole or in part over prior communications between the lawyer and client. As discussed below, this situation raises ethical issues for the lawyer.      

Applicable Rules

• 1.0 (Terminology)
• 1.4 (Communication)
• 1.6 (Confidentiality of Information)
• 1.7 (Conflict of Interest: General Rule)
• 1.9 (Conflict of Interest: Former Client)
• 1.10 (Imputed Disqualification: General Rule)
• 3.7 (Lawyer as Witness)

Inquiries

1. Under Rule 1.7, when is a lawyer precluded from representing a client in a matter where the lawyer’s prior work for the client may be at issue?

2. Under Rule 3.7, when is a lawyer precluded from advocating for a client at trial?

3. What are a lawyer’s obligations when attorney-client privilege issues arise based upon the lawyer’s prior work for a client?  

Discussion

D.C. Rules of Professional Conduct 1.7(b)(4) and 1.7(c) state:

• (b) Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if:
  
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• (4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.
  • (c) A lawyer may represent a client with respect to a matter in the circumstances described in paragraph (b) above if
• (1) Each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and
• (2) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.

D.C. Rule of Professional Conduct 3.7 states:

• (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
  • (1) The testimony relates to an uncontested issue;
  • (2) The testimony relates to the nature and value of legal services rendered in the case; or
  • (3) Disqualification of the lawyer would work substantial hardship on the client.
• (b) A lawyer may not act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness if the other lawyer would be precluded from acting as advocate in the trial by Rule 1.7 or Rule 1.9. The provisions of this paragraph (b) do not apply if the lawyer who is appearing as an advocate is employed by, and appears on behalf of, a government agency.

A. Application of Rule 1.7 When a Lawyer’s Prior Work for a Client Raises Issues as to Whether the Lawyer May Continue to Represent the Client

A lawyer’s prior work for a client may become an issue in a variety of circumstances. For example, a lawyer may provide tax advice that later becomes the subject of an audit or litigation with the Internal Revenue Service. Or a lawyer may negotiate a contract or draft an instrument on behalf of a client, and the meaning of the language negotiated or drafted by the lawyer later becomes the subject of actual or threatened litigation. See Iowa Ethics Opinion 09-03, supra. The lawyer and the lawyer’s firm may nevertheless wish to represent the client in the subsequent matter, and the client may also desire the firm’s representation in the subsequent matter. The lawyer and the firm, however, will need to consider their ethical obligations in determining whether they can take on the representation.  

Rules 1.7(b)(4) and 1.7(c) provide the starting point in the analysis. As a threshold matter, Rule 1.7(b)(4) requires the lawyer to determine whether the lawyer can provide unvarnished advice to the client and vigorously represent the client given the lawyer’s prior work or whether the lawyer’s professional judgment will be or reasonably may be adversely affected by the lawyer’s interest in her prior work. A concern is that the lawyer may avoid taking positions that could bring the quality of the lawyer’s prior work into question. For example, the lawyer might choose a strategy that avoids exposing the shortcomings of the lawyer’s prior work, even if that might not be the best strategy for the client. The lawyer must carefully analyze the rules and the circumstances of the potential representation and consider whether it would be permissible, or prudent, to represent the client. See Rule 1.7, cmt. 11 (“The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.”) See, e.g., In Re Conduct of Kluge, 335 Or. 326, 336-337 (2003) (lawyer violated Oregon’s rules of professional conduct where the legality of the attorney’s prior work was at issue, his interests reasonably might have affected his professional judgment, and he failed to make full disclosure of the potential conflict to his client and did not obtain his client’s consent.)³ If the lawyer concludes that she cannot provide competent and diligent representation to the client under the circumstances, then she may not undertake or continue the representation under Rule 1.7(c). 

Examples of situations where courts have found representation impermissible, under the particular circumstances of those cases, include In Re Kieler, 290 Kan. 397, 401 (2010) (violation of Rule 1.7 when lawyer continued to represent client after malpractice claim ripened, his interests were in conflict with the client’s interests, and he failed to obtain informed consent from his client under Kansas Rule 1.7(b)); In re Marriage of Wixom and Wixom, 182 Wash. App. 881, 888-905 (lawyer violated Rule 1.7 when he refused to withdraw from case after contending that his client should pay all fees associated with a Rule 11 sanctions order; because actual conflict existed, the client could not waive the conflict.). In these and similar situations, the lawyer must carefully consider, among other things, whether she can provide “competent and diligent” representation to the client.         

There are instances where the lawyer’s professional judgment on behalf of the client reasonably may be adversely affected by the lawyer’s personal interests, yet the client may nevertheless wish to retain the lawyer or continue with a current representation. In such circumstances, under Rule 1.7(c) the lawyer must: 1) reasonably believe that the lawyer can provide competent and diligent representation to the client; and 2) obtain informed consent from the client to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation. See Ambush v. Engelberg, 282 F. Supp. 3d. 58, 64 (D.D.C. 2017) (attorney could continue to represent clients where clients provided consent – after being advised by another attorney – as to attorney’s continued representation, and attorney maintained that he reasonably believed he could provide competent and diligent representation of clients).

If the lawyer reasonably believes that the lawyer can provide competent and diligent representation to the client, the lawyer must communicate adequate information and an explanation about the material risks of and reasonable available alternatives to the proposed course of conduct.⁴ In the context of prior work, the lawyer should at a minimum advise the client of the nature of the potential conflict, including the known risks of the representation, and the ability of the client to obtain new counsel. Although the lawyer’s disclosures and the client’s consent need not be in writing, it is prudent for the lawyer’s disclosures and the client’s consent to be in writing to avoid any subsequent misunderstandings. 

A question arises as to whether the lawyer is in the best position to advise the client when there is a potential conflict of interest under Rule 1.7 due to the lawyer’s prior work for the client. In such circumstances, the lawyer should consider advising the client to obtain independent legal advice on whether the client should retain the lawyer or the lawyer’s firm in the matter.⁵

B. The Impact of Rule 3.7

In addition to assessing whether a lawyer can diligently handle a subsequent matter given the lawyer’s prior work, the lawyer should assess whether the lawyer is likely to be a necessary witness at trial in the subsequent matter.  Under Rule 3.7, if the lawyer is likely to be a necessary witness, the lawyer cannot act as an advocate at a trial in the matter unless the testimony relates to an uncontested issue, the testimony relates to the nature and value of legal services rendered in the case, or disqualification of the lawyer would work substantial hardship on the client.⁶ Whether a lawyer is “likely” to be a “necessary” witness is dependent on the particular facts of the case. Others besides the lawyer may be able to testify on the matter on which the lawyer has knowledge, or the issue may not be important to the case or not be in dispute.⁷

Rule 3.7 generally applies only to advocacy at a trial and does not preclude an attorney from advocating for a client in pre-trial matters. The Committee has previously issued Legal Ethics Opinion 228, making it clear that Rule 3.7 applies only to representation as an advocate at trial, and that a lawyer may generally work on and appear in pre-trial matters for the client even if the lawyer is precluded from advocating for the client at trial under Rule 3.7. See also ABA Informal Op. 89-1529 (Oct. 20, 1989) (same). 

Rule 3.7 attempts to balance the interests of the client in proceeding with the lawyer of its choice and the need to ensure that the opposing party is not prejudiced by the lawyer appearing both as an advocate and witness. As comments 1 and 2 to Rule 3.7 state: 

• Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client . . . The opposing party has a proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

The substantial hardship exception recognizes that “a balancing is required between the interests of the client and those of the opposing party.”⁸ Although the opposing party might suffer prejudice from the lawyer testifying, “[e]ven if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.”⁹ Id.

Even if the lawyer is disqualified from acting as an advocate due to the lawyer’s likelihood of appearing as a witness at trial, other lawyers in the firm are not necessarily precluded from acting as advocates in the trial. “[T]here is no general rule of imputed disqualification applicable to Rule 3.7.”  Rule 3.7, cmt. 5; see Rule 1.10. Whether there is nevertheless an improper client conflict of interest is determined by Rule 1.7 or 1.9. The lawyer’s testimony may conflict with the client’s, or the lawyer may be vulnerable to impeachment due to an incentive to testify in support of the position of the lawyer’s firm.¹⁰ The lawyer and firm will need to analyze whether a conflict may be present and fully inform the client of the issues so that the client can make a meaningful choice whether to retain the firm or continue to have the firm represent it in the matter. 

C. Attorney-Client Privilege Issues

A client’s decision whether to waive an attorney-client privilege concerning the lawyer’s prior work can implicate the rules and considerations discussed above.  For example, a lawyer may advise a publicly-traded company that it need not reveal certain information in its public disclosure materials. If the client is later sued for failing to disclose that information, the client may need to consider an advice of counsel or similar defense.  At least in some circumstances, advancing such a defense might mean waiving attorney-client privilege over some of the lawyer’s communications, either because the client may affirmatively produce such communications or because opposing counsel may seek them.¹¹ If the same lawyer who gave the disclosure advice is representing the client in the subsequent litigation matter, a Rule 1.7 conflict may exist because the lawyer’s own prior conduct is at issue.  The potential waiver of privilege may be a significant aspect of the Rule 1.7 inquiry because the lawyer’s own communications might be subject to disclosure and, depending on the circumstances, might cause embarrassment or create legal exposure for the lawyer.  In these circumstances, the lawyer will need to fully inform the client about these circumstances and determine whether she can still provide competent and diligent representation to the client.¹² See Rule 1.7(c); Rule 1.6(e)(1) (unless an exception applies, a lawyer may only use or reveal client confidences or secrets with the informed consent of the client); see also Rule 1.4(b).

Rule 3.7 may also be implicated when a client advances a defense that might lead to an implied waiver of the attorney-client privilege. If the privilege is waived, the likelihood that the lawyer will be a necessary witness at trial increases, and consideration must be given to whether the lawyer can or should continue to represent the client.         

Given the foregoing issues, the lawyer must determine whether she is in the best position to address with the client the possibility of advancing an advice of counsel or good faith defense.  As with the representation issues discussed above, in providing advice to the client, the lawyer may intentionally or inadvertently seek to protect the lawyer’s own interests rather than those of the client. In the case of privileged materials, the lawyer may not wish to have potentially embarrassing or ill-thought-out attorney-client communications disclosed to the other side, the court, or a jury, and may wish to avoid the possibility of having to testify at trial. And the lawyer may be concerned about a later malpractice claim by the client. Again, depending on the circumstances, an independent lawyer may be in a better position to advise the client on whether to advance the defense.  

D. Conclusion

When a lawyer’s prior work may be at issue in a subsequent matter for the same client, the lawyer must carefully consider whether the ethics rules permit the lawyer to represent the client in the subsequent matter. Rules 1.7 and 3.7, in particular, come into play. As an example, Rules 1.7 and 3.7 may be implicated when a client faces a decision whether to waive privilege, or whether to assert a position in litigation that could have the effect of waiving privilege, over the lawyer’s prior communications with the client. When the lawyer’s prior work is at issue, the lawyer must determine whether the lawyer’s professional judgment will be or reasonably may be adversely affected by the lawyer’s personal interests, and if so, whether the lawyer can continue to provide the client with diligent and competent representation. If the lawyer reasonably believes she can continue the representation notwithstanding the conflict, the lawyer must fully inform the client of the existence and nature of the conflict, as well as the possible adverse consequences of the representation, and obtain the client’s informed consent before proceeding. It may be prudent for the lawyer to suggest that the client seek the advice of independent counsel. When a trial is possible, the lawyer or independent counsel must consider whether the lawyer is likely to be a necessary witness at the trial and, if so, whether Rule 1.7 or Rule 3.7 affects the lawyer’s ability to represent or continue to represent the client.

Published: August 2025

1. Rule 1.7(b)(4) enumerates several broad areas where a lawyer’s professional judgment may be compromised, resulting in a potential conflict in the representation of a client. This opinion only addresses conflicts that may occur where the lawyer has represented a client and the lawyer’s prior work for the client may be at issue in the same or different matter for the same client. Although the prior work of a lawyer may be at issue when the lawyer subsequently represents a different client, this opinion does not address that scenario.

2. See generally Iowa Ethics Opinion 09-03 (August 25, 2009) (analyzing Iowa Rules 1.7 and 3.7 in discussing whether law firm involved in purchase of closely held corporation could represent client in later dispute between the buyer and seller where law firm’s prior work could be the focus of litigation.)

3. The Kluge court opined that the lawyer “had a strong interest in defending the propriety of his conduct to protect his professional reputation….and in avoiding any personal liability to [plaintiff] for his actions as [plaintiff’s] supervisor.” Id. In addition, the court found that the lawyer’s interests might reasonably have compromised his ability to advise his client about litigation strategy in the case.

4. See Rule 1.0(e).

5. See Ambush, supra.

6. See Rule 3.7(a).

7. If the lawyer is a “necessary” witness from an objective standpoint, a strategy of refraining from calling the lawyer as a witness ordinarily will not avoid the restriction of Rule 3.7. See, e.g., Premium Products, Inc. v. Pro Performance Sports, LLC, 997 F. Supp. 2d 433 (E.D. Va. 2014); Freeman v. Vicchiarelli, 827 F. Supp. 300 (D.N.J. 1993); MacArthur v. Bank of N.Y., 524 F. Supp. 1205 (S.D.N.Y. 1981). But see Real Estate Training Int’l, LLC v. Nick Vertucci Cos., 124 F. Supp. 3d 1005 (C.D. Calif. 2015) (applying California rule).

8. Rule 3.7, cmt. 4.

9. For example, a client might face significant hardship if it must switch lawyers when the initial lawyer has substantial knowledge of the facts and nuances of the case, and the cost in time and money to switch counsel would be significant.

10. See Rule 3.7, cmt. 6

11. See, e.g. United States v. Bilzerian, 926 F.2d 1285 (1991) (attorney-client privilege implicitly waived when defendant in criminal securities fraud case raised good faith defense)

12. Of course, there are a myriad of other situations where a lawyer’s prior work might be implicated in a potential waiver of attorney-client privilege. This opinion does not purport to address the issue of when a client will be deemed to have waived the privilege; rather, the opinion merely discusses the ethical issues that a lawyer should consider when confronted with a potential waiver of privilege over past communications.