If a Rhode Island lawyer withdraws from representing a client, can the lawyer then represent someone else in a claim against that same client?

Currency note

This opinion was issued in 2000, before Rhode Island's later renumbering of the Rules of Professional Conduct. The opinion cites "Rule 1.17" for the duty to decline or terminate representation; Rhode Island Ethics Advisory Panel opinions issued from 2003 onward cite that same duty as Rule 1.16. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The inquiring attorney had represented an agency's director personally for years and, at the director's referral, took on the agency's defense in a lawsuit. While that litigation was pending, the agency terminated the director, and the director asked the attorney to represent him or her against the agency over the termination. The attorney withdrew from the agency representation, citing both a deteriorating relationship with the agency and the agency's own suggestion of a conflict.

The panel framed the threshold question as which rule governed: Rule 1.7, which applies to conflicts between current clients, or Rule 1.9, which applies to conflicts involving former clients. It concluded that Rule 1.7 controlled, because the attorney's withdrawal from the agency matter was made for the purpose of taking on a new representation adverse to the agency. Quoting Hazard and Hodes' treatise, the panel described this as the "hot potato" rule: a lawyer may not withdraw from a representation to convert a current client into a "former" client and thereby escape the stricter current-client conflict rules.

The panel acknowledged that Rule 1.17's permissive withdrawal provision would have allowed the attorney to terminate the agency representation for good cause, including a breakdown in the relationship. But it held that withdrawal for that reason does not change how the resulting conflict is analyzed; the matter remained governed by Rule 1.7, not Rule 1.9, citing its own prior opinion, R.I. Sup. Ct. Ethics Advisory Panel Op. 97-03 (1997), for the same principle.

Applying Rule 1.7's text, the panel found that representing the director against the agency would be directly adverse to the agency and therefore impermissible unless the agency consented after consultation.

Common questions

Q: If I withdraw from representing a client, does that client become a "former client" for conflicts purposes?

A: Not automatically. The panel held that withdrawing from a representation for the purpose of taking on a new matter adverse to that same client keeps the analysis under Rule 1.7 (current-client conflicts), not Rule 1.9 (former-client conflicts).

Q: Does it matter that I had good cause to withdraw, like a breakdown in the relationship?

A: The panel said no. It recognized that Rule 1.17(b) permitted the withdrawal itself for good cause, but held that a permissible withdrawal does not convert the conflicts analysis into a former-client question.

Q: Can I ever take the adverse representation in this situation?

A: Yes, if the original client (here, the agency) consents to the representation after consultation, per Rule 1.7.

Background and rules framework

The opinion applies Rule 1.7 ("Conflict of Interest: General Rule"), which at the time barred a lawyer from representing a client directly adverse to another client absent the lawyer's reasonable belief that the relationship would not be adversely affected and the client's consent after consultation. This corresponds to Model Rule 1.7 (Conflict of Interest: Current Clients). The panel distinguished Rule 1.9 (Duties to Former Clients, Model Rule 1.9), which it held did not apply because the attorney's withdrawal was undertaken to pursue the adverse representation rather than arising from an independent, prior termination of the relationship.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (Conflict of Interest: Current Clients) / RI Rule 1.7 (Conflict of Interest: General Rule)
• MR 1.9 (Duties to Former Clients), distinguished as inapplicable

Cases:

• Picker International v. Varian Associates, 670 F. Supp. 1363, 1365 (N.D. Ohio 1987), quoted for the "hot potato" characterization of dropping a client to take a more lucrative adverse matter

Other opinions cited:

• R.I. Sup. Ct. Ethics Advisory Panel Op. 97-03 (1997): settlement of one client's suit did not cure a conflict or convert it into a former-client issue
• Alabama State Bar Disciplinary Commission Op. 92-21 (1992): a firm may not represent one client against another even on unrelated matters, and withdrawal does not create a former-client situation
• Ethics Committee of Massachusetts State Bar Op. 92-3 (1992): a firm may not represent a long-term client against another client whose ongoing, unrelated representation it withdrew from

See also

• DC Bar Ethics Op. 272: Conflicts of Interest, "Hot Potato"
• Alabama State Bar Op. 1991-08: Firm May Not "Choose" Between Conflicting Present Clients
• Ohio BPC Op. 2019-001: Representation of Adverse Party in Unrelated Matters

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202000-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                           RHODE ISLAND SUPREME COURT
                               ETHICS ADVISORY PANEL
                            Opinion No. 2000-1, Request No. 792
                                 Issued February 10, 2000

Facts

     The inquiring attorney states that he/she has had a good relationship for several years with a

long-standing client, who was also the director of an agency. In his capacity as director, the client
referred a matter to the inquiring attorney in which the agency was named in a lawsuit. The inquiring
attorney filed an answer and a counterclaim on behalf of the agency, and conducted some discovery.
While that litigation was pending, the agency terminated the director. The director has asked the
inquiring attorney, who has represented the director and his family in several matters over the years, to
represent him/her regarding his/her termination.

    The inquiring attorney thereafter withdrew as counsel for the agency in the pending litigation.

The inquiring attorney states that he/she withdrew because his/her relationship with the agency had
substantially deteriorated, and also because the agency suggested that he/she has a conflict of interest.

Issues Presented:

     Having withdrawn as counsel for the agency in the pending litigation, the inquiring attorney asks

if he/she may now represent the director in an action against the agency relating to the director's
termination.

Opinion:

    The inquiring attorney has a conflict of interest pursuant to Rule 1.7 of the Rules of Professional

Conduct, and the Panel advises him/her to decline the representation of the director in an action against
the agency relating to the termination. Pursuant to Rule 1.7, the inquiring attorney may represent the
director if the agency consents to the representation.

Reasoning:

     Although the inquiring attorney has withdrawn as counsel for the agency in the pending litigation,

the rule which is applicable to this inquiry is Rule 1.7 which applies to conflicts between current clients,
and not Rule 1.9 which applies to conflicts relating to former clients. In The Law of Lawyering, Hazard
and Hodes have stated:

            "...[A] law firm may not withdraw from a representation when
            the purpose of the representation is to undertake a new representation

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Page 2

            adverse to the first client, even in an unrelated matter, and apparently
            even if the withdrawal would not have an adverse impact on the client.
            [Footnote omitted.] This is commonly referred to as the "hot potato"
             rule, after the colorful statement by a federal district court judge that
             'a firm may not drop a client like a hot potato, especially if it is in
             order to keep happy a far more lucrative client ' Picker International
             v. Varian Associates, 670 F. Supp. 1363, 1365 (N.D. Ohio 1987)."
             Geoffrey C. Hazard. Jr. And W. William Hodes, The Law of Lawyering,
             § 1.16:302, at 483 (2nd ed. Supp.1998).

     In the instant inquiry, the inquiring attorney withdrew as counsel for the agency not only because

of the conflict of interest, but also because of the breakdown of the relationship between the attorney
and the agency. The Panel notes that the permissive nature of Rule 1.17 entitled "Declining or
Terminating Representation" allows lawyers to terminate the representation of a client where to do so
would not have an adverse effect on the client's interests, or for other good cause. See Rule 1.17(b). A
breakdown in the attorney-client relationship would appear to constitute good cause. Nevertheless, the
Panel is of the opinion that the inquiring attorney's withdrawal from the representation of the agency
does not place the conflicts problem presented in this inquiry within the rubric of conflicts with a former
client. See R.I. Sup. Ct. Ethics Advisory Panel Op. 97-03 (1997) (where law firm represented two
clients with adverse interests, eventual settlement of one client's lawsuit did not cure the conflict or place
the conflicts problem under Rule 1.9.) Therefore the Panel looks to Rule 1.7 in guiding the inquiring
attorney.

    Rule 1.7 entitled "Conflict of Interest: General Rule" states:

      (a) A lawyer shall not represent a client if the representation of that client will
      be directly adverse to another client, unless:

            (1) the lawyer reasonably believes the representation will not
            adversely affect the relationship with the other client; and

            (2)    each client consents after consultation.

      (b) A lawyer shall not represent a client if the representation of that client
      may be materially limited by the lawyer's responsibilities to another client or to
      a third person, or by the lawyer's own interests, unless:

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            (1) the lawyer reasonably believes the representation will not
            be adversely affected; and

            (2) the client consents after consultation. When
            representation of multiple clients in a single matter is undertaken,
            the consultation shall include explanation of the implications of
            the common representation and the advantages and risks
            involved.

    The Panel is of the opinion that, under these facts, the representation of the director whose

interests are adverse to those of the agency is impermissible under Rule 1.7 unless the agency consents.
The Panel therefore advises the inquiring attorney to decline the representation of the director regarding
the director's termination by the agency, absent the consent of the agency. See Alabama State Bar
Disciplinary Commission Op.92-21 (1992) (law firm may not represent one client against another even
if subject matters of suits are unrelated, and withdrawal from representation of one client will not make
situation a conflict with former client); Ethics Committee of Massachusetts State Bar Op.92-3 (1992)
(law firm may not represent long-term client in a matter which is detrimental to another client's interests
where the firm withdrew from the other client's ongoing and unrelated representation.)