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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Rhode Island Legal Ethics

1.9   Rule 1.9 Conflict of Interest: Former Client

1.9:100   Comparative Analysis of Rhode Island Rule

Primary Rhode Island References: RI Rule 1.9
Background References: ABA Model Rule 1.9, Other Jurisdictions
Commentary:

1.9:101      Model Rule Comparison

Rhode Island has adopted MR 1.9, including the Comments thereto.

1.9:102      Model Code Comparison

Rhode Island has not adopted a Model Code comparison. See MR 1.9 and other jurisdictions.

1.9:200   Representation Adverse to Interest of Former Client -- In General

Primary Rhode Island References: RI Rule 1.9(a)
Background References: ABA Model Rule 1.9(a), Other Jurisdictions
Commentary: ABA/BNA § 51:201, ALI-LGL § 132, Wolfram § 7.4

If a husband and wife's interests are materially adverse, and if the inquiring attorney obtains confidential information in the first representation that is relevant in the second representation, the husband must consent after consultation to the inquiring attorney's representation of the wife. RI Eth. Op. 96-07.

Unless attorney's former client expressly consents after consultation, an attorney may not represent former City Planning Board member in a boundary dispute against the former client, where the attorney represented the former client in hearings before the Planning Board while the new client was serving on the Board. RI Eth. Op. 89-6 (1989). This is true even though the attorney did not believe he learned anything from the former client pertinent to the representation of the new client.

An attorney may represent a client in a criminal matter even though the victim was previously represented by the attorney's law firm and it will be necessary to use the victim's past criminal and other records to impeach the victim, so long as the attorney uses only information generally known or a matter of public record, and not confidential information obtained through prior representation of the victim. RI Eth. Op. 93-49 (1993).

An attorney who was sued by a former client (formerly represented in a personal injury action) after they were in an automobile collision may not reveal information obtained through representation to the disadvantage of the former client unless such information has become generally known and/or a matter of public record. RI Eth. Op. 94-7 (1994).

An attorney who drafted lease agreements for a former client, which were subsequently terminated by the parties, may not represent a potential client in a suit to recover the unpaid balance of those same contracts from the former client because the matters are substantially related and the potential client's interest are adverse to those of the former client. RI Eth. Op. 95-53 (1993).

An attorney who represented a client in a divorce proceeding, but was discharged prior to entry of final decree, may not subsequently represent the former client's ex-spouse in a child support matter against the former client. RI Eth. Op. 93-68 (1993).

An attorney may represent a client in a personal injury action against a former divorce client. RI Eth. Op. 93-68 (1993).

An attorney who represented a criminal defendant in a DUI case may not represent the tavern in an action based upon the same facts against both the tavern and the criminal defendant where the criminal defendant has not retained the attorney for civil representation, unless the attorney obtained the criminal defendant's consent after consultation under Subsection (a). RI Eth. Op. 93-72 (1993). Under subsection (b), confidential information may not be used to the criminal defendant's disadvantage even after termination of the client-lawyer relationship.

An attorney may represent a potential client in a personal injury action where the former client-doctor (previously represented in an unrelated medical malpractice suit) is expected to testify as the potential client's treating physician, because the matters are not substantially related and are not materially adverse. RI Eth. Op. 93-77 (1993).

A law firm that formerly represented Client A for four years in a family law matter before withdrawing from the representation may subsequently file a complaint against that client on behalf of Client B, provided that any information obtained in the representation of Client A is not used to the disadvantage of A. RI Eth. Op. 92-48 (1992).

An attorney who formerly represented several corporations owned by a client-husband in collection matters may subsequently represent the potential client-wife in a domestic matter, provided that the attorney does not use any information the attorney may have gained through previous representation of the husband's corporations to disadvantage the former client. RI Eth. Op. 92-59 (1992).

An attorney who formerly represented three clients in a real estate matter may represent one of the clients in an unrelated matter involving one of the other former clients. RI Eth. Op. 93-95 (1995).

An attorney may represent a criminal defendant charged with assaulting the daughter of a former client even though the former client has an outstanding bill with the attorney's office because the matters are not substantially related and the interests of the criminal defendant are not materially adverse to the mother. RI Eth. Op. 93-97 (1997). The fact of the outstanding bill is irrelevant to the RI Rule 1.9 analysis.

Where an attorney prepared a will for Client Y and a trust for Client X, and subsequently represented the trust company in probating X's estate, the attorney may represent the trust company in defending against a suit brought by Y and other remainder persons (represented by another attorney) under the trust, for failure to properly invest the trust funds, because preparing Y's will and the suit brought by Y against the trust company are not substantially related. RI Eth. Op. 94-10 (1994).

An attorney representing a therapist and the therapist's patients in a suit against a third party who improperly eavesdropped on sessions should withdraw from representing the patients because of a potential conflict of interest. RI Eth. Op. 94-22 (1994). Upon withdrawal, the clients become former clients and the attorney may only continue to represent the therapist if the patients consent after consultation.

An attorney who acted on behalf of an insurance company to expedite settlement within the limits of the insurance policy in a suit against decedent driver brought by the passenger in a fatal car accident and who subsequently represented insurance company in a suit brought by the executor of the driver's estate must withdraw upon executor's objection to the attorney's representation of the insurance company. RI Eth. Op. 94-28 (1995).

An individual does not become a former client by marrying a former client; therefore an attorney may represent the employer in an age discrimination suit brought by a former client's spouse. RI Eth. Op. 95-48 (1995).

No conflict of interest is present when an attorney represents an employee in an action against the employee's employer, who is also the employer of the attorney's spouse, because the Rules are concerned with conflicts between clients. RI Eth. Op. 96-02 (1996).

An initial, substantive consultation is sufficient to constitute representation for purposes of Rule 1.9, where an attorney conducted an initial consultation with a party who did not retain the attorney for that matter. RI Eth. Op. 91-72 (1991). An attorney is precluded by Rule 1.9 from representing another party in the same matter, where the interests of the two parties are adverse and the first party has taken the position that the attorney’s initial meeting and review of material precludes the attorney from representing another interested party. See id.

1.9:210      "Substantial Relationship" Test

An attorney may represent clients in an action against a former client in matters not related to the former representation. RI Eth. Op. 96-09 (1996).

RI Rule 1.9's "substantially related" language prohibits any situation in which a lawyer could have obtained confidential information in the first representation that would have been relevant in the second. RI Eth. Op. 96-07 (1996).

An attorney may represent a client whose interests are adverse to those of a former client if the subject matter of the current client's representation is not the same or substantially related to that of the former client. RI Eth. Op. 98-05 (1998).

The issues addressed in the former client's action must be substantially related to the issues in the current client's action in order for the two matters to be considered "substantially related." RI Eth. Op. 97-18 (1997). More specifically, the particular issues giving rise to a former client's action must be substantially related to the current client issues for the matters to be "substantially related." RI Eth. Op. 97-08 (1997).

An attorney may represent a client whose interests are adverse to those of a former client if the subject matter of the current client's representation is not the same or substantially related to that of the former client. RI Eth. Op. 97-08 (1997).

If an attorney obtained any information from a husband and wife's former representation involving real estate closings that would be helpful in the current divorce action by the husband, the matters may be considered substantially the same and consent is necessary. RI Eth. Op. 95-49 (1995).

An attorney's representation of Corporation A in a claim against the corporation's Former Employee X and later representation by the attorney's associate in collection cases are not substantially related to Former Employee Y's action for age discrimination against Corporation A, and therefore the firm's representation of Former Employee Y against the corporation is permissible. RI Eth. Op. 96-19 (1996).

An attorney's former representation of a client in a divorce action is not the same or substantially related to the current case for defective goods, brought by the attorney's former client, in which the attorney will be the defense lawyer. RI Eth. Op. 96-12 (1996).

An attorney may represent a former criminal client's husband in a divorce action against the former client, despite the former client's objections, because the matters are not substantially related. RI Eth. Op. 94-36 (994).

Representing a client for breaking and entering a former client's home is not the same or substantially related to representing the former client in a real estate closing and civil suit. RI Eth. Op. 94-69 (1994).

An attorney who represented a lending institution that is currently in receivership may not represent one of the institution's board members in a matter brought by the receiver without obtaining consent from the receiver because a substantial relationship exists between the past representation of the lending institution and the board members. RI Eth. Op. 94-17 (1994).

The former representation of a wife in a prior divorce is the same or substantially related to the current representation of her husband, who the attorney also represented in a prior divorce, because the attorney is privy to personal, financial, and private information concerning both the husband and the wife in their prior separate divorces. RI Eth. Op. 95-20 (1995).

A criminal matter in which the prosecution may call the victim's Grandmother as a witness is not the same or substantially related to a domestic matter not involving the current defendant in which the defense counsel formerly represented the grandmother. RI Eth. Op. 95-34 (1995).

An attorney may represent a wife in a divorce action and in a separate action filed against the wife by her mother-in-law where the attorney prepared a will for the mother-in-law 13 years prior, because preparation of the will is not the same or substantially related to the mother-in-law's action against the wife. RI Eth. Op. 95-42 (1995).

A mentally ill former client's refusal to consent to the attorney's appointment as guardian prohibits the attorney from serving as such because the former representation to secure the client's release from the hospital is substantially related to the appointment of a guardian for the client. RI Eth. Op. 94-79 (1995).

The fact that a former client corporation and current clients could have taken adverse positions in estate distribution and thus could have become adverse parties is not relevant of the opposing postures are never taken. RI Eth. Op. 90-32 (1990). Thus RI Rule 1.9 does not prohibit representation of current clients because any potential adversity did not develop.

Where an attorney formerly represented a client in a divorce proceeding and a transfer of real estate, Rule 1.9(a) prohibited the attorney from representing individuals in a boundary dispute relating to the former client's property. RI Eth. Op. 2001-05 (2001).

An attorney may represent a client in a real estate boundary dispute where two of the attorney's former clients from an unrelated corporate and personal injury matter are witnesses for the adverse party. The representation does not violate Rule 1.9 because the matters are unrelated. RI Eth. Op. 2001-06 (2001).

Where an attorney formerly represented a company in connection with the purchase of real estate, the attorney may not represent another company in connection with the purchase of an adjacent parcel of real estate if the two matters are substantially related. RI Eth. Op. 2001-08 (2001).

An attorney represented a school committee during a termination hearing subsequent to which the terminated employee filed a lawsuit against the committee and various individuals on it. The committee retained other counsel to represent it in the lawsuit. Two members of the committee requested that the original attorney represent them in their individual capacities. Absent consent by the school committee, the attorney was not permitted to represent the two committee members because their interests were adverse to the interest of the committee as a whole and the pending lawsuit was substantially related to the prior termination hearing. The attorney's law firm was also prohibited from representing the individual members under Rule 1.10(a). RI Eth. Op. 2002-03.

Where an attorney is a solicitor for a municipality, and as such serves as legal counsel to the municipality's planning and zoning boards, the attorney's representation of the municipality in an appeal brought before the zoning board by a property owner who is a former client dies not present a conflict of interest under Rule 1.9 provided that the two matters are not substantially related. The attorney's representation of the municipality does not present a conflict of interest under Rule 1.11 provided that the attorney did not participate personally and substantially in the subject matter of the appeal in the prior representation. RI Eth. Op. 2002-03A.

Defendant successfully rebutted plaintiff’s assertion that defendant’s law firm should be disqualified because confidential information about the plaintiff was shared while plaintiff was a former client of the defendant’s law firm. Factors leading to a successful rebuttal included the limited representation of the plaintiff and the questionable transmission of confidential information given the size of the law firm and a screen was used to insulate the new attorneys joining the law firm. Mearthane Prod. Corp. v. Lexmark Int'l, Inc., C.A. No. 00-245 ML (D.R.I. Nov. 21, 2001).

1.9:220      Material Adversity of Interest

An attorney who represented Client A in a divorce proceeding for custodial rights against husband X, may represent husband X's present wife, Client B, in a child support matter against her former husband Y, because Client A's interests are not materially adverse to those of Client B. RI Eth. Op. 98-04 (1998).

The attorney's drafting of a prior partnership agreement between husband and wife, is not materially adverse to the interests of the husband, as a former client, if the wife and husband's interest in the partnership are not marital assets in the divorce action. RI Eth. Op. 97-07 (1997).

A wife's request to the lawyer who drafted her estate plan and her husband's living will to amend her estate in order to leave out her husband's daughter from a previous marriage is not materially adverse to the husband's interest, but rather is only adverse to husband's daughter as a beneficiary. RI Eth. Op. 95-58 (1995). Therefore the lawyer can amend the spouse's estate plan without violating RI Rule 1.9.

An attorney who represented Client A in a contested divorce from B can not subsequently represent B in divorce proceedings against A after they remarried unless A consents after consultation, with the advice of his or her own counsel. RI Eth. Op. 94034 (1994).

1.9:230      Relevance of "Appearance of Impropriety" Standard [See also 1.7:230]

There is no authority in Rhode Island on this topic.

1.9:300   Client of Lawyer's Former Firm

Primary Rhode Island References: RI Rule 1.9(b)
Background References: ABA Model Rule 1.9(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 123, 124, 132, Wolfram § 7.6

An attorney may represent Client X in a matter against Client Y, who is the client of the attorney's former law firm, so long as Client X's matter is not the same or substantially related to the attorney's representation of Client Y in his/her former firm. RI Eth. Op. 94-74 (1994).

An attorney who formerly represented Client X while associated with Lawyer L's law firm may properly represent Client X in an action against Client Y who is represented by Lawyer L, because the attorney was not associated with Lawyer L when Layer L was retained by Client Y. RI Eth. Op. 90-6 (1990).

An attorney who drafted a mortgage assumption agreement while working at another law firm may not represent a potential client of the attorney's present firm in a bankruptcy filing concerning that mortgage assumption. RI Eth. Op. 92-51 (1992). Relying on the Comments to RI Rule 1.9 which state that "a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of a former client," the Ethics Panel found that the matters are substantially related and therefore a conflict of interest exists.

Although an attorney's former firm represented a defendant in other matters, the attorney may represent the plaintiff in a civil suit against that defendant because the attorney did not have any contact with the defendant, never saw the defendant's files and never acquired information relating to the defendant. RI Eth. Op. 94-71 (1994). The key test is the lawyer's actual knowledge about a client of his or her former firm. RI Eth. Op. 94-71(A) (1995). Thus, whether or not the matters are substantially related, the attorney is not disqualified from representing the plaintiff because he or she does not possess any actual knowledge about the former firm's client.

Where an attorney's former firm began representation of a wife in a matter against her husband while the attorney was associated with the firm, but the attorney did not acquire knowledge of information relating to the wife or the pending matter while so associated, the attorney is not disqualified from representing the husband in the matter after terminating his or her association with the firm. RI Eth. Op. 97-10 (1997).

1.9:310      Removing Imputed Conflict of Migratory Lawyer

There is no authority in Rhode Island on this topic.

1.9:320      Former Government Lawyer of Officer

An attorney who is a former city solicitor may represent a client in a suit against the city if the matter in which the attorney will represent the client against the city is not the same or substantially related to the matters in which he/she represented the city as its solicitor. RI Eth. Op. 97-06 (1997).

A former government attorney may represent private clients against his/her former government agency employer in connection with the same kinds of cases he/she handled while a government attorney. Rule 1.11 prohibits the attorney from representing private clients in matters in which he/she personally participated, and Rule 1.9(b) prohibits the attorney from disclosing confidential information about the government agency. RI Eth. Op. 2001-04 (2001).

1.9:400   Use or Disclosure of Former Client's Confidences

Primary Rhode Island References: RI Rule 1.9(c)
Background References: ABA Model Rule 1.9(c), Other Jurisdictions
Commentary: ABA/BNA § 55:501-55:2001, ALI-LGL § 132, Wolfram §§ 6.7 and 7.4

Even if the matters are not substantially related and the attorney is permitted to represent the current client, the attorney may not use any information relating to the representation of the former client to the disadvantage of the former client. RI Eth. Op. 97-08 (1997).