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 Treat this page as historical context, not current guidance.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 despite the withdrawal. Quoting Hazard and Hodes' treatise, the panel described the "hot potato" principle that a lawyer may not turn a current client into a former one merely by withdrawing from an ongoing representation. The panel made no finding about the attorney's reason for withdrawal.

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. On these facts, the panel applied Rule 1.7 to the proposed adverse representation despite the attorney's withdrawal from the agency matter.

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. The panel distinguished Rule 1.9 (Duties to Former Clients), holding that withdrawal from the agency matter did not place this conflict under the former-client rule.

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 Final 2000-1
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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:
Final 2000-1
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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.)